195 N.W. 157 | N.D. | 1923
Lead Opinion
This is an appeal from a judgment entered upon a special verdict in the district court of Grant county in the sixth judicial district, and from an order denying defendant’s and appellant’s motion for judgment notwithstanding the verdict or for a new trial.
The grounds of the motion are, • in substance, that the plaintiff, Edmund Dubs, was a trespasser on the right of way; that the evidence of plaintiff’s own witnesses shows that the boy was not discovered upon the track in a place of danger until the train was within 40 feet of him and that after such discovery every precaution was taken to
This case was formerly before this court on appeal and is reported in Dubs v. Northern P. R. Co. 42 N. D. 124, 171 N. W. 888. The facts are fully stated in the former opinion and they are not substantially different in the case at bar. At the trial of the case now before us, the plaintiff called as his witness one IT. LL Warren, the engineer of the defendant’s train which ran over the plaintiff, and elicited from this witness in his own behalf testimony with reference to the accident. We do not deem it necessary to set out the facts in full, but shall refer to them merely as occasion requires in the course of the opinion.
This is a tort action. It is founded upon the theory that the defendant owed a legal duty to the plaintiff, Avhich it failed, without lawful excuse, to perform; and that, because of such failure, the plaintiff suffered injury for Avhich defendant should respond in damages. There can, of course, be no actionable negligence unless there be a failure to perform a legal duty owing to the injured party.
The plaintiff was injured while a trespasser upon the tracks of the defendant near Noav Leipzig in Grant county, this state. In the former opinion in this case, this court-, speaking through its present Chief Justice, defined the legal duty which the defendant- railroad company OAved the plaintiff trespasser as follows:
“It was the dirty of the defendant to exercise ordinary care to avoid injury to the boy after discovering him to be in a place of peril. Failure to do so was Avilful negligence. . . .
“The fact that the boy Avas a trespasser on the tracks of the .defendant railway, and that he was guilty of contributory negligence, did not absolve the defendant from its performance of this duty. It if failed to perform its duty in this regard, its negligence is deemed the proximate cause of the injury, Avhile the boy’s negligence is deemed the remote cause of it.” (Italics are ours).
This court is, therefore, committed to the doctrine, applied as measuring the duty of landoAvners to trespassing human beings in O’Leary v. Brooks Elevator Co. 7 N. D. 554, 41 L.R.A. 677, 75 N. W. 919, and likewise held to define the duty of railroad companies in
After this court, on the first appeal, had detailed the facts and commented upon special interrogatories answered in connection with a general verdict for the plaintiff, the court say:
“There is, however, no special finding of the jury that the engineer did in fact see the hoy in time, after such discovery, to avoid the injuries. It is clear, therefore, under the evidence, that the doctrine of last clear chance applied, if the engineer saw the boy at or about the time he first saw the dog.”
The testimony in that trial as in this showed that the engineer first saw the dog 200 or 300 feet away.- It was claimed that the dog obstructed the view so that the engineer did not see the boy until the dog jumped off the track. The evidence then, as now, showed, or tended to show, that the engineer did not in fact see the boy until about 10 feet away from him and that, immediately upon seeing him, the brakes were put on and a good stop had, although not in time to avoid injury. At the trial this time, the engineer testified specifically, as a witness for the plaintiff, that he did not see the boy until about 40 feet from him, when the dog jumped up and left the track and that, upon seeing the boy, he immediately put on the brakes, sanded the: rails and a good stop was obtained, some of the passengers being thrown from their seats.
The court, in the former opinion, concluded by saying:
“The majority also deem it proper to suggest that, in the event a new trial is ordered and had, special interrogatories ought to be
From the opinion on the former appeal, it is clear that this court felt that in order to support a verdict against the defendant, the jury would have to find, as a fact, that the engineer “did in fact see the boy in time, after such discovery, to avoid the injuries;” and that upon this question the court was of the opinion that a special interrogatory, in the event of a new trial, should be submitted to the jury, in order to determine whether the defendant was guilty of actionable negligence. According to the holding on the first appeal, the jury would have to find, as a fact, when the engineer first discovered the plaintiff upon the track in a place of peril and then to determine, as a fact, that after such discovery the defendant negligently failed to use ordinary care in avoiding injury to the plaintiff. This court refused to hold, altho such a finding was necessary in order to justify the general verdict in that case, that the jury found, or intended to find, that the engineer saw the boy in time to‘avoid injuring him, but negligently failed to stop the train in time. Accordingly, a special finding on this point was suggested by this court.
Twenty-three interrogatories were submitted to the jury on the trial of the instant case, but no question required them to find when or at how distant a point the engineer discovered the plaintiff upon the 'trade, or whether he discovered him in time to avoid injuring him in the exercise of ordinary care. The following interrogatories, and no others, bearing upon this question, were submitted:
(8.) “Did the engineer of the train which ran over the plaintiff Edmund Dubs, before running over the said Edmund Dubs, discover the said Edmund Dubs to be in a position of peril on the railroad track? A. Tes.”
(9.) “Did the said engineer, after discovering the said Edmund Dubs to be in a position of peril on the railroad track, fail to exercise ordinary care to avoid injuring him, the said Edmund Dubs ? A. Yes.”
It is contended by the respondent that the answers to the foregoing-interrogatories sufficiently find controlling questions of fact arising under the doctrine of last clear chance as directed in the former' opinion. In order to determine this question, it becomes necessary to.
“’There is no dispute in the evidence that the brake appliances were in fine working order and that a fine emergency stop ivas accomplished' when some 30 to 35 feet away from the boy. ... It was so good, that passengers were thrown out of their seats. . . .
“Necessarily from the special findings made, the jury, pursuant to the instructions of the court in this regard, must have found, to support the general verdict rendered, that the engineer did see the boy about the time he first saiv the dog (about 200 or 300 feet away) and in time to have avoided the injuries sustained by the exercise of' ordinary care.”
The testimony at this trial is the same as to the precautions taken by the engineer and the train crew after the moment of time when the-engineer said he saw the boy on the track. On the former trial, and at this trial, there is not-a syllable in the record that indicates that any precaution was omitted or that the train crew failed to do anything-that should have been done in order to effect a speedy stop, after the-engineer saw the boy in a position of peril, namely, when the train was about 40 feet from the boy. If, therefore, in answering question number nine affirmatively, the jury found, or intended to find, as a fact that the engineer did see the boy before the train was within, approximately 40 feet of him, and when 200 or 300 feet away, it is doubtful if such a finding is supported by substantial evidence and can be sustained. The case, therefore, is in no better condition than when it was here before. In fact, it is perhaps less favorable to the plaintiff because we now have the clear and unequivocal testimony of his own witness, the engineer, that he did not see the boy until about 40 feet from him. In the former opinion this court said that while there was some evidence which might support a finding that the engineer did see the boy in time to avoid the injuries, the court nevertheless said it had a “doubt if the jury did in fact so find or had any intention of so doing.” Neither the evidence nor any finding in this case justifies a conclusion on this point different from that on the first appeal. If this eouid, in the former appeal, could not let the general verdict stand because the court doubted if the jury found or intended to find wilful
The answer to question number six of the special verdict found defendant guilty of want of ordinary care in running over the plaintiff and the answer to question number seven found that such want or ordinary care was the proximate cause of the injury. It is contended that these answers sufficiently establish defendant’s liability. Wc do not think so. Under the doctrine of liability adopted in the first opin
It is contended that all defects in the questions submitted were waived by defendant and York v. General Utility Corp. 44 N. D. 51, 116 N. W. 352, recently decided by this court, is cited. In that case the court says that counsel owe a duty to the trial court and cannot refuse assistance and permit error in order to take advantage thereof later. No general rule is there laid down that controls over the facts here.
In the case at bar, the parties seem to have agreed that there should be a special verdict and the form of the questions seems to have been agreed upon by counsel as well, except three or four questions which need not be considered. AVe think the correct and reasonable rule is that a party does not waive the right to challenge the sufficiency of the special verdict to support a judgment on the ground that a question upon a material fact was not submitted when the burden of proving such fact, whether it be as a part of the cause of action or defense, is upon his adversary. A broader rule would impose on one party to the lawsuit an affirmative duty aS to the manner of conducting the litigation on the other side. The burden of proving when the engineer first saw the boy and that, after seeing him, he failed to use ordinai*y care to avoid the injury, rested on plaintiff and under the circumstances the defendant should not be held to have waived the right to challenge the sufficiency of the findings upon facts material to the plaintiff's cause of action. The situation is analogous to that arising when the special verdict fails to find upon a material fact and the same rule should be applied as to the responsibility for the effect of such failure. See Boulger v. Northern P. R. Co. 41 N. D. 316, 322, 171 N. W. 632.
There is another defect in the special verdict to which, for guidance in the event of another trial, we (jail attention and which, in some jurisdictions, would be held fatal unless waived. As said before, this
(11.) “Should the said engineer in the exercise of ordinary ca.ro have known that the plaintiff was in a position of peril in time to avoid injuring him by the exercise of ordinary care?” A. “Yes.”
(II.) “Did the engineer after discovering an object on the track, fail to exercise ordinary care to determine whether or not said object was a human being so that he could have avoided injuring the plaintiff, Edmund Dubs ?” A. “Yes.”
(18.) “Was the want of ordinary care of the defendant and its servants, including the engineer, the proximate cause of the plaintiff, Edmund Dubs’ injury, and Rudolph Dubs’ damages?” A. “Yes.” Assuming that questions 8 and 9 were sufficient upon the ultimate fact, under the last clear chance doctrine as defined by this court in •the former opinion, the plaintiff, in the interrogatories quoted, numbers 11, II and 18, in submitting to the jury the question of defendant’s liability for failure to use ordinary care in discovering the presence of the plaintiff upon the tracks, asked the jury to find facts that were immaterial and upon another and essentially different theory of liability, which was unsound under the facts in this case. The jury found, in answering question 18, that the want of ordinary care of the defendant’s servants was the proximate cause of the injuries and awarded damages accordingly. Want of ordinary care, with reference to what legal duty? This question follows number 11, which, by implication at least, suggests that want of ordinary care in maintaining a lookout for trespassers under the circumstances here constitutes actionable negligence. It is not unreasonable to suppose, since the jury had no instruction from the court as to the law on this point, that the jury,
"We do not order a reversal on this ground, however, for the reason that the defendant waived the objection by agreeing in advance that such immaterial questions might be submitted to the jury. Lathrop v. Fargo, M. Street R. Co. 23 N. D. 246, 254, 136 N. W. 88; Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 857; Schultz v. Chicago, M. & St. P. R. Co. 48 Wis. 875, 4 N. W. 402. This does not alter the fact that the special verdict, in view of the answer to question number 9, is equivocal and it cannot be determined whether recovery was allowed on the only theory of liability on which a verdict for plaintiff could be sustained.
The judgment of the trial court is reversed and a new trial ordered.
Concurrence Opinion
(concurring). I concur in the opinion prepared
The first trial of this action was had in June, 1917, and resulted in a general verdict in favor of the plaintiff in the sum of $3,000. The trial court, however, set the verdict aside and ordered judgment in favor of the defendant notwithstanding the verdict. An appeal was taken, and, in an opinion written by the present Chief Justice, this court held that the defendant was not entitled to judgment on the merits as a matter of law, and that consequently the trial court erred in ordering judgment notwithstanding the verdict. This court, however, did not reinstate the judgment but ordered that a new trial be had so as to enable the parties to submit to a jury the questions of fact on which liability depends. The opinion of this court in the most unmistakable terms indicated that, under the undisputed facts in the case, the defendant was liable only by application of the “last clear chance” or “discovered peril” doctrine. In other words, this court ruled that the defendant was liable only in case the jury found as a fact that the engineer actually saw the boy in time, so that by the exercise of reasonable care and prudence, he could have stopped the train and avoided injuring the boy.
In the opinion the court said:
“The sole question in this case, requiring our attention, is whether upon the record, and the verdict of the jury actionable negligence of the defendant is shown through its failure to avoid injury to the boy after discovering him to be in a position of peril. . . .
“It was the duty of the defendant to exercise ordinary care to avoid injury to the boy after discovering him to be in a place of peril. . . .
“The fact that the boy was a trespasser on the tracks of the defendant railway, and that he was guilty of contributory negligence, did not absolve the defendant from its performance of this duty.
“The jury, upon special questions submitted found that the boy was negligent in lying on the railway track, that he was there asleep just before the accident occurred, and that the engineer’s view was not ob
“Necessarily from the special findings made, the jury, pursuant to the instructions of the court in this regard, must have found, to support the general verdict rendered, that the engineer did see the boy about the time he first saw the dog and in time to have avoided the injuries sustained by the exercise of ordinary care. This court is not prepared to say as a matter of law, that the jury were not warranted in so finding under the evidence. The jury did find that the dog did not obstruct the view of the engineer so that he could not see the boy. Thera is, however, no special finding of the jury that the engineer did in fact see the hoy in time after such discovery, to avoid the injuries. It is clear, therefore, under the evidence, that the doctrine of lasl clear chance applied, if the engineer saw the hoy at or about the time he first saw the dog.
“The majority of the court are of the opinion that there is some substantial evidence upon which the jury might base a finding that the engineer did see the boy in time to avoid the injury. But they doubt if the jury did in fact so find, or have any intention of so doing. This is especially so in view of the finding of the jury that the boy had been asleep, which finding was contrary to the testimony of the boy. Accordingly a majority of the court are of the opinion that the judgment; should not be reinstated, but that the case should be remanded for further proceedings upon the motion for a new trial. The majority also deem it proper to suggest that, in the event a new trial is ordered and had, special interrogatories ought to he submitted to the jury upon the controlling questions of fact arising under the last clear chance doctrine
The case was thereafter tried in the district court in May, 1919, and submitted to the jury in conformity with the views expressed and the directions given in the decision of this eburt. The case was submitted to the jury for a special verdict. The findings of the jury on the controlling question involving the application of the last clear chance doctrine were as follows:
Question No. 5. Did the engineer or fireman actually see the boy on the track in time, by the exercise of ordinary care, to stop the train and avoid injuring him ?
Question No. 6. Did the trainman wilfully and negligently fail to stop the train after the presence of the boy on the track was actually and in fact known to them?
Answer. No.
Judgment was entered in favor of the defendant upon such special verdict. Thereafter, plaintiff made a motion for a new trial which was denied by the trial court. Later plaintiff made a second motion upon the ground that the stenographer’s notes had been lost, or stolen. This motion was granted. On appeal this court held — that the loss of the stenographer’s notes did not constitute a ground for a new trial, and that consequently the trial court erred in granting such motion, 47 N. D. 210, 181 N. W. 606. Thereafter, plaintiff brought an action in equity and obtained a new trial under the rule announced in Bruegger v. Cartier, 20 N. D. 72, 126 N. W. 491. The third trial was had in June, 1922. On this trial, the case was again .submitted to the jury for a special verdict. Judgment was entered thereon in favor of the plaintiff. Defendant moved for judgment notwithstanding the verdict or for a new trial. The motion was denied and it has appealed from the judgment and from the order denying its motion for judgment notwithstanding the verdict or for a new trial.
On this appeal defendant asserts that the trial court erred in its instructions to the jury; that the evidence is not sufficient to support some of the controlling findings; that improper and inconsistent questions were submitted; and “that the special verdict is not sufficient to justify the judgment entered here, in that there is no finding in the special verdict that the peril of the boy was discovered in time to stop the train.” I will consider the last stated contention. The others have been so fully and ably discussed by my brother Johnson that I could add nothing to what he has said.
As has already been indicated, in the decision of this court on the first appeal it was ruled that liability on the part of the defendant existed only in case the engineer actually saw the boy on the track in time to stop the train and avoid injuring him. And it was suggested that upon a retrial of the case special interrogatories be submitted to the jury “upon the controlling questions of fact arising under the last clear chance doctrine.” In discussing the basis of the “last clear
It is obvious therefore that the pivotal question of fact in this case is: “When did the engineer first see the boy on the track ?” Or stated otherwise, “How far was the locomotive away from the boy at the time the engineer actually saw the boy and became aware of his presence on the track ?” For manifestly it is only after this fact is established that an intelligent inquiry can be conducted into the further question whether after such discovery the engineer could, by the exercise of due care, have stopped the train and avoided injuring the boy.
It will be noted that upon the second trial the jury was specifically asked to find whether the engineer actually saw the boy on the track in time so that, by the exercise of ordinary care, he might have stopped the train and avoided injuring him; also,'whether the trainmen wilfully and negligently failed to stop the train after the presence of the boy on the track was actually known to them. The jury answered both of these questions in the negative. But, upon the third trial, that is, upon the trial involved on this appeal, no question was submitted embodying the specific proposition of whether the boy was discovered by the engineer in time so that he might have stopped the train and avoided the injury. In fact, the questions submitted on the trial involved on this appeal seem to have been framed so as to avoid this very specific proposition. ■ It is contended by the respondent that Questions 8 and 9, submitted upon the last trial, covered the element, whether tire
“Question No. 8. Did the engineer of the train which ran over the plaintiff, Edmund Dubs, before running over the said Edmund Dubs, discover him, the said Edmund Dubs, to be in a position of peril on the railroad track?
“Answer. Yes.
“Question No. 9. Did the engineer after discovering the said Edmund Dubs to be in a position of peril on the railroad track fail to exercise ordinary care to avoid injuring him, the said Edmund Dubs ?
“Answer. Yes.”
It will be noted that by question No. 8, the jury merely found that the engineer discovered Edmund Dubs to be in a position of peril on the railroad track before the train ran over him. There was no need of submitting this question to the jury. The court might well have directed the jury to answer this question in the affirmative. At no time has the. engineer denied that he saw the boy in a position of peril on the railroad track before the train ran over him. On all three trials, the engineer has testified that he did see him when the locomotive was about 40 feet away. lienee, manifestly, under the evidence, only one answer could be returned to this question, i. e., an answer in the affirmative. The question, however, did not inquire as to when the engineer discovered Edmund Dubs upon the track. If it is true, as the engineer-testified, that he first discovered the boy, Edmund Dubs, when the locomotive was only about 40 feet away, then concededly, there is no liability in this case. The answer which the jury returned to question No. 8, is just as consistent with the idea that the engineer first saw the boy when the locomotive was only about 40 feet away, as that he discovered him when the locomotive was 200 or 300 feet away. Hence, in so far as question No. 8 is concerned, it is manifest that it, and the answer thereto, in no manner covers the controlling question of fact involved in this case.
But respondent contends that the jury, in answering question number 9 in the affirmative, must have found that the engineer saw the boy in time, so that by the exercise of ordinary care, he could have stopped (he train and avoided injuring him. Tt seems to me that this conten
It is well settled that a special verdict must contain findings in favor of the party having the burden of proof upon every material fact in issue between the parties. Boulger v. Northern P. R. Co. 41 N. D. 316, 171 N. W. 632. Hence, in an action like this where damages are sought to be recovered for personal injuries claimed to have been occasioned by the negligence of the defendant, and there is a conflict in the evidence or the conclusions which may be drawn therefrom, the special verdict in order to justify a judgment in favor of .the plaintiff must contain findings of ultimate facts in .favor of the plaintiff as to all the three essential elements above mentioned.
It is conceded that there was no duty on the part of the defendant to keep a lookout. In other words, defendant’s duty towards the plaintiff first sprang into existence -when the engineer actually saw the boy upon the track. Hence, defendant here is liable only in case: (1) the engineer after discovering the boy failed to exercise the required care to avoid injuring him; and (2) the negligence of the engineer after discovering the hoy occasioned the injuries for which compensation is sought to be recovered in this action.
To justify a"judgment in favor of the plaintiff here, it is not sufficient that the special verdict contains a finding that the engineer was negligent in his acts after he discovered the boy upon the track, but there must further be an express finding to the effect that such negligence, — that is, the negligence after discovering the boy upon the track,— is the proximate cause of the injuries for which compensation
Not only was no question submitted involving this element, but, as pointed out in the opinion prepared by Mr. Justice Johnson, there was submitted to the jury a number of other questions implying that the defendant was required to keep a look-out. These questions coupled with the instructions given could hardly have failed to confuse the jury. It may, also, be mentioned that the court wholly failed to instruct on the burden of proof. While it does not impress me that the failure to give such instruction constitutes prejudicial error, in the absence of request therefor, in Nygaard v. Northern P. R. Co. 46 N. D. 1, 178 N. W. 961, the trial court ordered a new trial principally on the ground that it had failed to instruct on the burden of proof. The ruling of the trial court in the Nygaard Case was sustained by this court in an opinion written by the present Chief Justice. If there.was error in failing to instruct on the burden of proof in the Nygaard Case, it is difficult to see why that would not also be'true here. In the Nygaard Case, the jury made findings on controlling questions against the party having the burden of proof, while in this case the findings which it is said justifies a judgment in favor of the plaintiff were in favor of the party having the burden of proof.
On the record as a whole I am of the opinion that a situation is presented whore this court can neither affirm the judgment, nor order a dismissal of the action. In other words, I believe that it is the duty of this court to remand the case for a new trial.
Dissenting Opinion
(dissenting). Over eleven years ago, in July, 1912, the plaintiff, then a mere lad of nine years, suffered the loss of
I am of the opinion that the evidence in the record, above stated merely in a general way, is sufficient, together with the surrounding circumstances as introduced in the evidence, to support the finding of the jury that the engineer did see the boy and failed after discovery,., to use reasonable care to avoid injuring him. Palon v. Great Northern R. Co. 129 Minn. 101, 151 N. W. 894.