96 Kan. 249 | Kan. | 1915
Lead Opinion
The opinion of the court was delivered by
In this action J. F. Duggan sought to recover damages under the federal employer’s liability acts from The Missouri Pacific Railway Company for personal injuries. On October 4, 1913, Duggan was employed by the defendant as a head brakeman on extra freight train No. 424, and was injured when that train collided, head-on, with extra freight train No. 475. Duggan was thrown from the steps on the side of the engine and tender down a steep embankment, and suffered injuries and loss of time for which he asked damages in the sum of $6162. It appears that while at Cornell, Kan., the conductor of train No. 424 was ordered to meet train No. 475 at Godfrey. Instead of personally delivering the order to the engineer and reading it to him the conductor read the order to
Complaint is made that the court erred in permitting the amendment of the motion for a new trial and in allowing the motion on the added ground. Six grounds for a new trial were alleged in the original motion, but misconduct of the jury was not one of them. More than a month after the return of the verdict leave was asked and obtained to amend the motion and add the new ground of misconduct of the jury. The misconduct was the statement of a juror in the jury room that he had learned from an attorney that when a demurrer to plaintiff’s evidence was submitted the court was about to uphold it and throw the case out of court, and jurors who were voting for an award of $6000 voted for $1000. In accounting for the filing of the amended motion more than three days after the verdict it was stated in an affidavit of plaintiff’s attorney that
“The application for a new trial, except for the cause of newly discovered evidence, must be made by written motion stating the grounds therefor, filed within three days after the verdict or decision is rendered, unless unavoidably prevented. Such motion -may be heard and decided by the judge at chambers on reasonable notice to the parties.” (Civ. Code, § 306.)
The grounds alleged in the original motion having been overruled the amended motion is to be treated as if it' was the original one, and as the ground alleged therein was not newly discovered evidence the motion was filed too late unless the plaintiff was unavoidably prevented from filing it within the three-day period. The plaintiff insists that he was unavoidably prevented from filing the motion on the new ground within the prescribed time because he had not then learned that there had been misconduct of the jury and could not by due diligence have ascertained it. What is meant by the term "unavoidably prevented?” The phrase can hardly be the equivalent of what is called an act of God, but it can hardly be less than some obstacle or hindrance which a party, can not overcome by the reasonable exercise of his powers and the use of means that are available to him. It has been held that the adjournment of the court on the next day after the decision was rendered was not an unavoidable cause for delay beyond the three-day period. (Pratt v. Kelley, 24 Kan. 111.) It has also been decided that the pendency of a motion for judgment on the special findings affords no excuse for delaying the filing of a motion for a new trial within the prescribed time. (Clement v. Hartzell, 60 Kan. 317, 56 Pac. 504.) In Mercer v. Ringer, 40 Kan. 189, 19 Pac. 670, a party prepared his motion for a new trial and mailed it to the clerk of the district court on
It is further contended that upon the facts admitted and found judgment should have been given in favor of the defendant. This contention is based upon the theory that the collision
It follows that the judgment of the district court granting a new trial must be reversed and the cause remanded with directions to enter judgment on the general verdict returned by the jury.
Dissenting Opinion
(dissenting) : I am of opinion that within the meaning of the statute the plaintiff was unavoidably prevented from filing the motion within three days after the return of the verdict and, therefore, that the order granting a new trial should be upheld. The prevention is as unavoidable where the plaintiff had not learned and could not by due diligence have learned of the misconduct within three days as if he had been deprived of the opportunity to file the motion within that time on account of sickness, or interruption of travel, or the failure of the postal facilities. The lack of information which he could not by due diligence acquire is an obstacle as unavoidable as the lack of physical power to prepare the motion and hand it to the clerk. Would it not be regarded to be unavoidable if the attorney fraudulently omitted to file the motion until after three days and the party who relied on him to do so did not learn of his treachery until after that time ? Or if a party should not learn until the fourth day that the jury had been corrupted by the opposing party should the delay not be regarded as unavoidable when he applied for a new trial as soon as he discovered the fraud ? The plaintiff was not warranted in alleging misconduct of the jury unless he had reason to believe that it had occurred, and if he could not by the ordinary means available or by reasonable diligence learn of the ground his delay in alleging it appears to me to