148 P. 330 | Mont. | 1915
delivered the opinion of the court.
This action was brought against the Great Northern Railway Company and the Anaconda Copper Mining Company to recover damages for personal injuries sustained by the plaintiff while working in the smelter at Great Falls. A motion for nonsuit by the mining company was sustained at the close of plaintiff’s case.
As against the railway company, the complaint charges negligence in coupling a locomotive to empty cars at the place where plaintiff was engaged in the performance of the duties of his employment, in such a careless and violent manner that the cars were driven eastward and upon the plaintiff, injuring his right arm to such an extent that amputation was necessary. It is also charged that it was the duty of the railway company to give plaintiff due warning that the ears were about to be moved, and in failing in this respect the company was negligent. The answer of the railway company denies the material allegations of the complaint and pleads contributory negligence and assumption of risk. In selecting a jury the court called upon plaintiff and defendants to challenge peremptorily, and plaintiff exercised his first. The mining company then dismissed a juror, and this procedure was followed upon the call of the court for the second, third and fourth challenges. The railway company then advised the court for the first time that it was unable to agree with its codefendant as to jurors to be excused, and demanded that it be permitted to exercise four peremptory challenges. Upon the refusal of this demand it requested to be permitted to excuse a particular juror then in the box, but this request was likewise denied. A verdict for $25,000 in favor of plaintiff and against the railway company was returned and judgment entered thereon. Upon consideration of a motion for a new trial,
1. The judgment for $25,000 was not in existence at the time
2. ¥e are unable to understand upon what theory the rail-
4. A special demurrer for ambiguity and uncertainty in the complaint was not interposed, and these defects cannot now be urged, upon our attention. (Rev. Codes, sec. 6539.) While the
5. It is insisted that the damages are excessive and appear to have been awarded under the influence of passion or pre-
The object of section 6794 is to secure to litigants fair and impartial trials of their controversies. The statute is silent with respect to the means by which passion or prejudice may be shown. The courts have generally contented themselves with a comparison of the amount of the particular verdict with the extent of the injuries shown. The jurors are not permitted to impeach their verdict by disclosing the proceedings in the jury-room, from which passion or prejudice might be inferred (State v. Beesskove, 34 Mont. 41, 85 Pac. 376); and unless the amount of the verdict, when taken into consideration, with the surrounding facts and circumstances ordinarily available to the defeated party discloses the presence of these elements, then subdivision 5 of section 6794 is a dead letter. In the present instance we are relieved of much of the embarrassment usually surrounding the solution of like questions. The issues were narrowed in the lower court to very restricted limits. In the complaint the plaintiff alleges that at the date of his injury he was twenty-
While the time devoted to a consideration of this case by the jury is not decisive, we do not share the opinion of some courts
If, then, passion and prejudice swayed the jurors, there was not a fair and impartial trial, and, instead of reducing the verdict, the lower court should have granted appellant’s motion, to the end that the ease may be once submitted to the unbiased judgment of jurors selected to administer justice between these parties.
The attempted appeal from the judgment as originally entered is dismissed; the motion to dismiss the appeals is overruled; the judgment and order are reversed and the cause is remanded for a new trial.
Reversed and renumded.