198 P. 141 | Mont. | 1921
delivered the opinion of the eourt.
On the evening of March 1, 1917, Northern Pacific freight train No. 1713, westbound, left Winston at 8:03 for East Helena, followed immediately by engine No. 1288, which had assisted the train from Townsend to Winston, and at the latter place had been cut off. The distance from Winston to East Helena is 15.9 miles, bnt on account of train troubles No. 1713 did not reach the East Helena yard limits until 8:52. The train was required to take the siding and moved to and a few feet past the switch before it came to a stop. There were some sixty-four ears in the train, and the caboose stood a short distance east of the yard limit board. Engine 1288 stopped from
The answer denies any negligence on the part of the company, or its agents and servants in charge oi train 1713, and alleges negligence on the part of the plaintiff in approaching the yard limit board at an excessive rate of speed. The trial resulted in a verdict in favor of plaintiff, and from the judgment entered thereon and from an order denying a new trial defendant appealed.
Of the several assignments of error but one requires consideration. Is the evidence sufficient to sustain the verdict?
It is conceded that a considerable distance east of the yard limit board the track runs through a cut; that west of the cut the track curves to the south, then runs straight for some distance, and then curves slightly to the north; and that plaintiff
In order to determine whether the brakeman was negligent in failing to warn plaintiff at a sufficient distance from engine 1288 that by the exercise of ordinary care train 1746 could have been stopped and the collision avoided, the answer to each of the following inquiries is of primary importance: (a) Where was the rear end of train 1713 with reference to the yard limit board, and where was engine 1288 when the collision occurred? (b) Where was the brakeman when train 1746 came into view? (e) Where does the straight track begin from the east? (d) Where is the cut referred to in the evidence? (e) How far was plaintiff from engine 1288 when the signals were first seen? (f) At what rate was plaintiff running his train?
(a) In his complaint plaintiff alleges that the rear end of train 1713 was seventy-five feet east of the yard limit board, and again he alleges that it was 275 feet east of that point. Upon the trial he testified that it was five car-lengths east of the yard limit board and that the cars average fifty feet in length. He alleges that the rear of engine 1288 was 350 feet east of the board, and that his train collided with it 400 feet east of that point.
(b) Plaintiff testified that he saw the lighted fusee in the brakeman’s hand and the rear lights on engine 1288 at the same instant,- that when he first saw these signals the brakeman was four or five car-lengths east of the rear of engine 1288 and was going east. Later he testified that immediately after the collision he met the brakeman four car-lengths east of the front of train 1746. The undisputed evidence is that the impact drove the caboose of train 1713 westward to the yard limit board a distance of 250 feet according to plaintiff’s testimony, so that, if the second statement above is true, the brakeman was not as far east when the collision occurred as he was when plaintiff first saw him, though he was traveling eastward all the time. At an investigation held at Livingston four days after
(c) Plaintiff contented himself with giving estimates of the distances. He did not undertake to locate definitely the point where the straight track commences from the east, but inferentially he fixed it at 350 feet east of the rear of engine 1288, for he testified that he saw the signals when he first came upon the straight track, and that he was then seven car-lengths from engine 1288. By actual measurements the distance from the yard limit board to the point where the straight track commences from the east is 1,600 feet in round numbers. If the rear of engine 1288 was 350 feet east of the yard limit board, as alleged in plaintiff’s complaint, then the straight track actually commences 1,250 feet east of the rear of engine 1288, instead of 350 feet, as estimated by plaintiff.
(d) Plaintiff also estimated that the rear of engine 1288 was twenty car-lengths, or 1,000 feet, west of the cut. The measurements disclose that the distance between the west end of the cut and the rear of engine 1288 is 2,326 feet, assuming that engine 1288 was stationed at the point fixed by plaintiff in his own testimony. Plaintiff testified that the cars average fifty feet in length, but a cheek of his own train from the wheel report disclosed that they averaged forty-four and three-tenths feet in length.
(e) Plaintiff alleges in his complaint that when he first observed the signals or received warning that a train was on the main line track east of the yard limit board he was only 150 feet from the rear of that train. Upon the trial he testified first that he was seven car-lengths away, and later testified that
(f) Plaintiff testified that he had exceeded thirty miles per hour on straight track after he left Winston. At Livingston he stated that he averaged about twenty-eight or twenty-nine miles per hour from Placer, through Louisville and to the cut. Upon the trial he testified that when he first applied the brakes in the cut he was going twenty miles per hour, and later testified that he was running twenty-five miles per hour, and again that when he applied the brakes he reduced his speed to twenty-five miles per hour. He testified that when he first saw the signals he had reduced his speed to fifteen miles per hour and could have stopped his train and avoided the collision if he had had eleven car-lengths distance within which to do it. He also testified that he was eleven ear-lengths away from engine 1288 when he jumped, and that he jumped because he saw he could not stop in time to avoid the collision, and that, with the brakes set, his train was still going about six miles per hour when it struck engine 1288. He also testified that, if his train had been running twenty-five miles per hour, he could have stopped in eighteen or nineteen car-lengths (900 to 950 feet), but he failed to stop within 1,250 feet or twenty-five car-lengths.
Whatever other controversy may arise over the rate at which train 1746 was traveling when the collision occurred, the fact remains that the impact was sufficient to practically destroy
Plaintiff testified that the brakeman was only four or five car-lengths east of the rear of engine 1288 and should have been back seven car-lengths farther than he was “to have flagged my train so as to give me time in which to stop. * * * If he had been eleven ears back of the rear engine No. 1288, I could have stopped my train.” Again he testified that the brakeman should have gone “beyond the cut to have given us the necessary advice as to the position of the train on the main line.” The first statement would place the brakeman 550 feet east of the rear of engine 1288; the last one would require him to be approximately half a mile from that point.
Plaintiff testified that after the collision he went to his locomotive “and stayed on it until it was towed into Helena.” Later he admitted that his locomotive “was in shape so that it could go on its own power”; and it is admitted that his engine did go into Helena on its own power and pulled train 1746.
During the first day of the trial of this case plaintiff was examined at length by his own counsel and cross-examined by counsel for the railway company, during which examination he referred to the fact that immediately after the collision he had a conversation with the brakeman, but did not tell what was said. On the second day of the trial he was recalled by his counsel and then testified as follows: “When I got up after that fall, I started for my engine, and as I was on the way to the engine I met the flagman of train 1713 west, between where I got up and the rear end of their train, about four ear-lengths from the head end of my engine. I had a conversation with the flagman at this time; I said to him, ‘Why didn’t you get back to stop me?’ and he said, ‘I would, but I didn’t know what we were doing here.’ He said, ‘We expected to move
Although no complaint is made in the pleadings of the braking apparatus on train 1746, plaintiff testified that when he set the brakes preparatory to jumping “the emergency didn’t work; * * * the braking apparatus on the train was not in good shape.” At the investigation at Livingston he stated that he had a very good braking train, had no trouble stopping it at any place, and that the brakes handled the train very well. Plaintiff admitted that the investigation was held at the time and place mentioned; that he was present and examined as a witness; that the questions were asked by the superintendent and the evidence taken by the stenographer. He does not deny that he made the answers given above. He testified: “I was in such pain when I was up there and I was sick, and I don’t remember what I did say.” He admitted that soon after the investigation he was discharged by the railway company, the reason assigned being his “action in the collision at East Helena, ’ ’ but he assumed to assign a different reason as the one which actually prompted his discharge.
So far as any attempt was made to sustain the charge of negligence against the crew of train 1713, the plaintiff’s testimony stands alone. The evidence for defendant may be stated briefly as follows: Grannis, the conductor on train 1713, testified that as soon as his train came to a stop he sent Brakeman Moorehead back east with a lantern and lighted fusee to signal train 1746; that the flagman was ten or twelve ear-lengths east of the rear of train 1713 when he met engine 1288; that he
Jones, the engineer on 1288, testified that he met the flagman about twelve car-lengths east of the caboose of train 1713; that he answered the signal and spoke with the flagman; that the flagman continued on eastward and was about the “point of the curve” when train 1746 came in sight; that when he first saw the signal at about the mile-post he had his fireman drop a lighted fusee on the track, but it fell into soft snow and was smothered, and he had another — a yellow light— dropped, and it continued to burn. Barton, the fireman on 1288, testified to the same facts.
Cole, the conductor on 1746, testified that he was sitting in his caboose when the collision occurred; that he immediately went to the west door of the caboose and looked out and saw the flagman from two to five car-lengths west of him. Cole's train consisted of thirty-four cars and occupied 1,550 feet of track, so that, if his testimony is true, the flagman was from twenty-six to thirty car-lengths east of the point of collision when the trains came together.
Moorehead, the brakeman and flagman, testified that immediately after train 1713 stopped he started back with a lantern and lighted fusee; that he met engine 1288 when he was ten or twelve car-lengths east of the rear of train 1713; that he spoke with Engineer Jones and kept on going; that he saw the fusee thrown out by 1288, and that he was from thirty to thirty-five car-lengths from his own caboose when train 1746 passed him; that he received no recognition of his signal from Engineer Casey and threw his fusee at the cab window as the engine passed; that he was about two car-lengths west of the caboose on train 1746 when the collision occurred; that he went forward and talked with Conductor Cole and then started back west; that he met Casey about the middle of train 1746; that
Caldwell, the engineer on train 1713, testified that, when he stopped his train, he looked back and saw the flagman going east with a lighted fusee.
Le Van, a traveling engineer or road foreman, was riding with engineer Caldwell on the locomotive pulling train 1713. He testified that after train 1713 come to a stop and after train 1746 came through the cut he looked back and saw two burning fusees, one red one and one yellow; that the red one was farthest from him and was “away back.”
The testimony discloses without substantial controversy that from five to eight minutes elapsed between the time train 1713 came to a stop and the collision occurred, and that the ground was covered with snow about eight inches deep.
In rebuttal Marchington testified that he did not see the yellow fusee thrown from engine 1288.
In Haddox v. Northern Pac. Ry. Co., 43 Mont. 8, 113 Pac. 1119, this court said: “Juries may not arbitrarily and capriciously disregard testimony of witnesses, not only unim
It is the general rule that an order denying a new trial upon the ground that the evidence is .insufficient to sustain the verdict will not be reversed where the evidence is conflicting, if there is some evidence to support the verdict; but the rule has its foundation in the assumption that the conflict is real and the supporting evidence is substantial.
In Driscoll v. Market Street Cable Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591, the supreme court of California said: “When a jury catches at a semblance or pretense of evidence for the purpose of somewhat equalizing financial conditions by taking money away from one party and giving it to the other without legal cause, the trial judge should, without hesitation, set the verdict aside; and in the event of his not doing so, this court will grant a new trial. ’ ’
Primarily, it is the province of the jury to pass upon the credibility of the witnesses and the weight to be given to their testimony, but the determination of the jury is not conclusive. Insufficiency of the evidence is a statutory ground for a motion for a new trial (sec. 6794, Rev. Codes), and in passing upon the motion it is the duty of the trial court to weigh the evidence, and, if it is not sufficient to sustain the verdict, a new trial should be ordered (Mullen v. City of Butte, 37 Mont. 183, 95 Pac. 597), and, if it is not, the appellate court must then determine whether there is substantial evidence to warrant the verdict and will not abdicate its authority in favor of the jury’s findings. Jurors are subject to the ordinary infirmities of human nature, and eases are sometimes presented wherein justice would be denied if the courts failed to interfere.
The corollary of the first rule above is stated cogently in McAllister v. McDonald, 40 Mont. 375, 106 Pac. 882. It was there held that the supreme court is not authorized to affirm an order denying a new trial: (a) Where the evidence tending to support the verdict is an isolated statement of a witness which is in conflict with his other statements; or (b) when the verdict is contrary to the great weight of the evidence, and the evidence which tends to sustain the verdict is impeached or rendered improbable by conceded facts, or is against all reasonable inferences or probabilities of the case; or (c) when the verdict, though supported by some evidence, is so utterly at variance with the real and unexplained facts that the court can say that it is clearly wrong.
The correct answer to every one of the inquiries suggested in the early part of this opinion is of vital consequence, and yet we undertake to say that the jury could not find an intelligent answer to any one of them m the testimony produced by the plaintiff, and, since the verdict finds no support in the testimony of defendant's witnesses, it is without substantial evidence to sustain it, and the trial court abused its discretion in denying the motion for a new trial.
Erickson, a civil engineer and a witness who testified upon the trial of this case, measured the distances along the track and prepared a map which was introduced in evidence and which shows the distances between the points in controversy. In an exhaustive note to Lalor v. City of New York, reported in Ann. Cas. 1916E, 572, the rule deduced from the authorities
The judgment and order are reversed, and the cause is remanded to the district court, with directions to dismiss the complaint and enter judgment in favor of defendant for its costs.
Reversed.
