11 Colo. App. 139 | Colo. Ct. App. | 1898
delivered the opinion of the court.
The appellee brought suit against the appellant for injuries .alleged by him to have been sustained in the following manner : While he was riding in one of the defendant’s cars as a passenger, in the vicinity of Gunnison in this state, in a cool season of the year, the doors of the car were left open, and ■.suffered to remain open for some considerable time, thus causing great discomfort to the plaintiff, and he arose and attempted to shut them. About the time he reached the rear door, the train, which was moving rapidly, encountered an .abrupt curve in the track, bringing the car to a quick stop, and then, as he was reaching out to shut the door, causing a ■sudden start forward, which threw him out upon the platform, and off the car upon the ground.
The ground upon which the defendant bases its claim to judgment is that the special finding of fact is inconsistent with the general verdict. Section 199 of the code leaves it discretionary with the jury to return a general or special verdict. It then makes it their duty, in case they return a general verdict, to find specially upon any particular questions of fact which may be submitted to them by the court, and provides that when the special finding shall be inconsistent with the general verdict, the special finding shall control, and judgment shall be given accordingly. If, therefore, this special finding is inconsistent with the general verdict, and if the special finding requires the entry of a judgment different from the one which was entered, the position of the defendant is well taken, and it is entitled to the disposition of the case which it asks. Now, placing the special finding and the general verdict side by side, no inconsistency whatever between them is perceivable. On their face they seem to be harmonious. But counsel make use of an instruction, given at their request by the court, to deduce an inconsistency between them. The following is the language of that instruction:
“ If you believe, from the evidence, that the doors of the*142 car in which the plaintiff was riding were left open after leaving Gunnison, the fact is not to he considered as establishing any negligence on the part of the defendant, from which a cause of action could arise to the plaintiff, for the injury which happened to him cannot be considered a proximate result of such act.”
The argument is that under that instruction, the leaving of the doors open, was not such negligence as would, in the absence of other negligence of the defendant, authorize a verdict for the plaintiff; and as the only negligence of which the jury, by their answer to the question submitted by the court, found the defendant guilty, was the leaving of the car doors open, therefore the general verdict contradicts the special finding.
A special finding will prevail against the general verdict only when it clearly appears upon the face of the record that there is irreconcilable antagonism between them; and if they can be harmonized upon any hypothesis, the judgment will follow the general verdict. Amidon v. Gaff, 24 Ind. 128.
Whether this special finding is sufficiently well defined to exclude all inference that the jury in rendering their general verdict had in view any other negligence of the defendant contributing to the injury, we do not think it necessary now to inquire. If it is, then we must assume that the jury regarded the particular negligence found, taken in connection with other conditions leading up to the accident, as sufficient to entitle the plaintiff to a recovery, notwithstanding the instruction. If the instruction correctly stated the law, or was a correct application of the law to the case, then upon the supposition that the meaning of the finding is that the defendant was guilty of no negligence except leaving the car doors open, the general verdict was against the law, and for that reason it might perhaps be said that it was inconsistent with the special finding; and if the special finding and the general verdict could not stand together, the motion for judgment on the special finding should have been sustained. But if
In our opinion this instruction was radically wrong. The plaintiff was a passenger on the defendant’s car. Through the negligence of the defendant’s servants the car doors were suffered to remain open, so that the car was filled with cold air, and became uncomfortable. The plaintiff, to remove the cause of the discomfort undertook to close the rear door; and as he was in the act of so doing, the car gave a sudden and violent lurch, which precipitated him through the doorway, and threw him upon the ground, thus causing the injury complained of. The plaintiff was not bound to endure the discomfort of the car, and incur the risk of contracting some malady. As the railroad company failed to protect him, it was his right to undertake his own protection. But the instruction said that the leaving of the car doors open could not be considered as establishing any negligence on the part of the company for which a cause of action could arise to the plaintiff, because the injury was not the proximate result of the condition. This presentation of the case to the jury was erroneous. While the lurching of the car was the immediate cause of the injury, the plaintiff would not have been exposed to the danger of injury, except for
But it is asserted that the question whether the instruction was a correct statement of the law is not open to this court, because it was not objected to below, and because no cross-error is assigned upon it here. It is true that a party by failing to interpose objections at the proper time, may be concluded by instructions given at the instance of the adverse party. If in this case the verdict had been for the defendant, and the plaintiff were here seeking a reversal on the ground of error in the instruction, we should most certainly hold that his objection came too late. Whether, if the defendant, instead of moving for judgment because of the alleged inconsistency between the special and the general
But here the defendant seeks to use an instruction, palpably erroneous, and which it induced the court to give, not for the purpose of opening up the judgment and permitting a retrial of the facts, but for the purpose of foreclosing forever the plaintiff’s remedy for the wrong of which he complains, and converting a verdict in his favor into a judgment against him from which he has no possibility of escape. The code provision that, when the special finding shall be inconsistent with the general verdict, the special finding shall control, was never designed to enable one party to convert an error, committed at his own instigation, into a weapon for the destruction of the rights of the other. The defendant is not relying on the instruction to sustain a judgment in its favor, nor is the plaintiff assailing the instruction to secure the reversal of a judgment against him. It is therefore wholly immaterial whether the plaintiff objected to the instruction or not. His attitude toward the instruction is in no manner involved in the question which has been submitted to us for decision. That question is, whether, upon its face, the special finding is so inconsistent with the general verdict, as to necessitate a judgment for the defendant, notwithstanding the general verdict. Such inconsistency is not palpable, and, certainly, it is not allowable to deduce it from an error committed in behalf of the party asserting it.
The motion was properly denied, and the judgment is affirmed.
Affirmed.