5 Wash. 46 | Wash. | 1892
Lead Opinion
In this cause due notice was given of the time and place of settling the statement of facts, but upon the day fixed, the appellant, through what the court below deemed an excusable inadvertence, failed to call the matter to the attention of the court. Four days later, after notice to the respondent, the court entertained a motion to enter a nime pro tunc order, as of the date fixed for the settlement, adjourning the proceeding. The respondent appeared specially for the purpose of objecting that the court had lost jurisdiction of the matter, which objection the court overruled, and certified the statement. While we think the fact that a nunc pro tunc order was made could have no effect to assist the appellant, unless in fact an order was made at the date set for settling the statement of facts, the entry of which had been omitted, still in this cause it cannot deprive it of its right to be heard. The proposed statement of facts was a stenographer’s report of the trial, to which respondent proposed no amendments whatever. Neither party in such a case was required to attend before the court, unless the court itself had seen fit to make some change in the proposed statement; therefore the fact that either the clerk or party inadvertently failed to call the statement to the court’s attention on the particular day could have no effect upon the power of the court, or the judge, to certify the statement. To all intents and purposes it was a submission of the cause upon an agreed statement of facts.
The first error complained of in this case is that the court below, by its rulings upon the admission of testimony, and its charge to the jury, deprived the appellant of its defense that the car upon which the respondent was injured was not being operated by it, but by a construction company with which it had a contract for electrical equipment of its
Out of a great number of cases which were cited to our attention by both sides we find but two which are directly pertinent upon this point. The first is Cunningham v. International Railroad Co., 51 Tex. 503. In that case a passenger was carried by a construction train operated by independent contractors for the building of the road, without the knowledge of the railroad company, and against its express prohibition, and it was held that the railroad company was not liable. The other case is that of Lakin v. Willamette, etc., R. R. Co., 13 Or. 436 (11 Pac. Rep. 68), which is a case on all fours with this one, with the exception that there the railroad was an ordinary steam railroad. The court said:
“The defendant may contract for the construction of its road, but it cannot escape liability for injuries to passengers caused by the negligence of another which it permits or allows to use its road for the purposes of traffic. In such case, as regards the public, those who operate the road must be regarded as the agents of the corporation. This doctrine is in accordance with sound public policy; for it would certainly be against the public interest to allow corporations, invested by the state with important franchises and privileges, and incorporated to discharge a public duty as well as to subserve a private benefit, to shirk its responsibilities, or shift its duties and liabilities to other, perhaps, irresponsijble parties. Except as authorized by*53 statute, it cannot relieve itself from responsibility for the exercise of its corporate powers and franchises. ’ ’
The two cases referred to, it seems to us, express the correct principle applicable in such instances, and under that principle there was no error on the part of the court as to the point in discussion.
2. Appellant claimed a failure of the plaintiff’s case because he did not prove that he had paid his .fare. His proof was to the effect that he could not remember whether he had paid his fare or not, but he believed that he did not, because the conductor did not call upon him for it, but he testified that he got upon the car for the purpose of becoming a passenger, and that he was willing to pay and would have paid but for the failure of the conductor to come where he was, and the crowded condition of the car which compelled him to stand upon the foot-board on the outside. We think he was a passenger.
3. The next point is that the learned judge of the court below did not define to the jury the terms “diligence,” “negligence,” “extraordinary care,” etc., which were frequently used throughout the instruction. The answer to which is that although the appellant requested a number of instructions, all of which were given with the exception of one, either as requested or in a modified form, none of them called the attention of the court to the alleged omission or asked a definition of the terms used, and error cannot now be predicated on its omission.
4. Running through the charge as given, the court instructed the jury, in substance, that the appellant, as a common earner of passengers, was liable to the respondent if the injury done to him could have been avoided by extraordinary care and vigilance on the part of the appellant, its agents and employes. Substantially, the instructions on this point were the same as those usually given in cases of injuries upon steam railroads. It has long been the rule
. There were four questions of fact involved in this case: (1) Did the appellant deposit the plank on the track in the position where it struck the respondent? (2) Did it inspect its track with reasonable frequency? (3) Did the motorman keep a sufficient lookout? (4) Was the brake deficient ? In any one of these matters it was certainly not improper to say to the jury that the railroad company should exercise at least a very high degree of care since it appears that it was at this time frequently carrying over this track such numbers of passengers in open cars that they could not be supplied with seats;, that the track was
Since the decisions which fixed the liabilities of horse railroads were made, and within veiy recent years, electricity as a motive power for propelling street cars has come into general use, and but few cases are to be found in the books relating to them. A horse car is very little different from a stage coach, or any other wheeled vehicle drawn by horses, but an electric car differs from a horse car in many respects as greatly as does a steam car. In the course of judicial treatment the operators of such vehicles must expect to be held to a greater degree of responsibility than ever attended the use of the now almost obsolete horse car.
5. The fourth and fifth paragraphs of the complaint allege as follows:
‘ ‘ 4. That the defendant so negligently and unskillfully conducted itself on said day in the management of its roadbed and track between its termini above mentioned that through the negligence and fault of the defendant and its servants a large heavj’- plank was placed upon its roadbed, by defendant and its servants, so as to project over and on to said track at a height of between two and six feet above*56 said track, and so projecting said plank was allowed to remain with the knowledge and consent of the defendant.
“5. That defendant so negligently and unskillfully conducted itself in the management of said car upon which plaintiff was a passenger that through the negligence of defendant and its servants in guiding said car, and in not keeping the said roadbed and track in proper condition, the said car while proceeding from Ballard to Seattle ran plaintiff, while a passenger upon said car, against said plank, by which plaintiff was much injured, being cut and bruised upon his right leg and knee. ’ ’
Under this portion of the complaint error is assigned because the court permitted the respondent to draw out of the motorman upon his cross examination that the brake rod was too long, so that when the brake chain was wound around the brake staff to its full length the rod did not take up all the slack, and therefore the brake did not press firmly against the wheels. A plaintiff is required to state his case in his complaint, but not the evidence to sustain it. The allegation that the defendant so negligently and unskillfully conducted itself in the management of its car that through the negligence of defendant and its servants, in guiding the car, respondent was injured, we think was broad enough to cover the admission of the motorman’s statement even in plaintiff’s opening. A passenger who is injured in such an accident has but slight means of knowing just what the immediate cause of his injury is, and could only be held to a general statement of it. The care of a brake rod in this case might be said to be a part of the management of the car, for which complaint was specifically made. It was hidden away from sight, where the respondent could not see it, or have knowledge of its construction, and if it was a fact that- it was defective to such an extent that it caused or contributed to cause respondent’s injury by its failure to stop the car before the plank was reached, he had a right to present that fact to the jury.
The court below admitted evidence tending to show defects in the engine, and that was one of the principal points of controversy in the case. The territorial supreme court, by Burke, Chief Justice, said:
“The allegations in the complaint were broad enough to cover such testimony; and, even if they were not, this would furnish no ground of exception, in view of § 105 of our code. ’ ’
6. Appellant asked the court to charge:
“The defendant is not chargeable with negligence by reason of the position of the plank by which the plaintiff was struck, unless the jury find either that the defendant caused or permitted the plank to be placed in a dangerous position near the track, or failed to inspect the track and its vicinity diligently and frequently prior to the accident.”
The request was granted with this addition:
‘1 Or that the motorman or the person who was running the car upon which plaintiff was riding at the time of the injury complained of could not by the exercise of a high degree of care have seen the plank which struck plaintiff in time to have prevented the running of said car into or against said plank. ’ ’
Complaint is made because the addition made by the court has a tendency to divert the minds of the jury from the point of the instruction asked, which was to the appellant’s responsibility as to the plank, irrespective of its re
7. The ordinances granting franchises to build the appellant’s railway were put in evidence. These ordinances limited the speed of cars to ten miles an hour, and upon their effect the appellant asked this charge:
“The question whether the speed at which the car in question was running at the time of the accident was under all the circumstances such as to amount to negligence on the part of the defendant is to be determined by the jury without any reference to the limit of speed of cars imposed by the franchise under which the part of the road where the accident occurred was operated at the time of the accident. ’ ’
Upon the refusal to give this charge, error is alleged because, as it is said, outside of municipal lines the highest possible speed is allowed to all carriers by railroad, and such speed when track, car, etc., are in good condition is never negligence as to a passenger. No authority is cited for this proposition, and we doubt the correctness of it. If
“This ordinance was admissible as reflecting upon the question of the care exercised by the deceased in view of the fact that the defendant was guilty of an act forbidden by an ordinance, which he had no reason to anticipate. Again, proof that defendant was violating this ordinance, was in its nature evidence tending to show defendant’s liability, where the injury resulted from not observing it. ’ ’
8. Eespondent could find no other place to locate himself on the car but the footboard running along the side of the car, because the car, which was an open one with seats running crosswise, was full, as was all the standing room on the platforms and on both the footboards. No objection was made by any agent of the appellant to his taking that position and it was shown to be a common thing for passengers on appellant’s cars to ride in that way. There might be some injuries to which such action on the part of a passenger would be justly said to contribute, but they are not of the class of injuries here in question.
9. The respondent resorted to some unnecessary evidence for the purpose, as it was asserted, of showing that the appellant was a common carrier, and in the exercise of its franchises from the city of Seattle, and the board of county commissioners. The complaint only put in issue the question whether or not the appellant or the construction company was operating the road. A number of objections addressed to the documentary evidence in this connection may, therefore, be passed over. But it is said that a certain mortgage made by the appellant to secure bonds to the amount of three hundred thousand dollars was used in the argument to the jury by counsel for the respondent to
10. Two physicians, who were witnesses for the respondent, testified to the existence of a certain lump or enlargement on the inside of the respondent’s knee. For appellant two physicians also testified that there was no lump there. On rebuttal, respondent produced a third witness, who, over objection, testified to the lump. Thompson on Trials, § 346, is as follows:
1 ‘ The admission or exclusion of evidence not strictly in rebuttal is a matter resting in the discretion of the trial court, the exercise of which discretion is not subject to review except in cases of gross abuse. ’ ’
The production of merely cumulative evidence can certainly not be held to be an abuse of this discretion.
These were all the material errors alleged to have occurred at the trial. The jury brought in a verdict for ten thousand dollars, six thousand for damages up to the time of the trial, and four thousand for permanent injury. The court, on motion for new trial, reduced the judgment to seven thousand dollars, and it is contended that even this sum is excessive.
The respondent was a carpenter and contractor, thirty-
A court of last resort must hesitate before it interferes with a verdict of this kind. Yet upon the theory of compensation we cannot see any reasonable grounds for supporting so large a judgment in this case. The actual
Dissenting Opinion
(dissenting).—I dissent from the conclusion reached by the majority that the judgment in this case should be reduced to §5,000, or reduced at all. There is nothing in the record to indicate, much less to prove, that the verdict of the jury, which was for §10,000, was rendered under the influence of passion or prejudice. It is getting to be too common a practice, in my opinion, for courts to practically ignore the province of the jury in the assessment of damages in this kind of cases, and to act on the presumption that the damages were excessive, instead of on the proper presumption that the verdict of the jury was