191 P. 333 | Or. | 1920
Apparently there was an attempt the complaint to state a cause of action for negligence of the defendants, and another count for injury inflicted in violation of what is known as the last clear chance doctrine. No motion to require the plaintiff elect between these two different phases in her pleading appears in the record.
One of the chief complaints company admission of ordinance No. 25 in evidence. It is urged that this enactment was not passed in the man-required by the general ordinance No. 11, regulating the passage of ordinances by the council of Beaverton. The first section of this general ordinance requires that every ordinance shall be read three times before passage, the first and third readings to by sections and the second reading permissively title only. This requirement appears therein:
“No ordinance shall pass more than two readings at any one meeting, except by unanimous vote. The filial vote upon an ordinance shall be by ayes and nays, and the names of those voting_ aye and those voting nay shall be entered in the journal and no ordinance shall be deemed passed, unless it receives the affirmative vote of three members of the council. ’ ’
It is also prescribed that upon the passage of any ordinance the enrolled copy shall be submitted to the mayor to write upon it “approved,” with the date
“Ord. 25. 1st reading.
“Con Sprainer Yes.
“Con Summers Yes.
¿“Con Boring Yes.
“Con Bolger Yes.
“Declared passed first reading.
“Ord. 25. Second reading.
“Con Summers Yes.
“Con Sprainer Yes. .
“Con Boring Yes. -
“Con Bolger Yes.
“Declared passed on 2d reading.
“Ord. 25. 3 & last reading.
“Con Sprainer Yes.
“Con Summers Yes.
“Con Boring Yes.
“Con Bolger Yes.
“Declared passed by the Council.”' .
“No ordinance shall pass more than two readings at any one meeting, except by unanimous vote.”
“Every reasonable presumption is to be made in favor of the legislative proceedings; and when the Constitution does not require certain proceedings, to be entered in the journal, the absence of such a record will not invalidate a- law. It will not be presumed, from the mere silence of the journal, that either house has exceeded its authority or disregarded constitutional requirements in the passage of legislative acts.”
This same rule was followed in State ex rel. v. Boyer, 84 Or. 513 (165 Pac. 587). We hold, then, that in the absence of any affirmative showing on the subject, the mere silence of the city record on the subject does not establish that the rules were violated in the passage of the ordinance. The failure of the recorder properly to certify the performance of his ministerial duty to post the ordinance after its passage cannot be allowed to thwart the legislative will of the city council as expressed in its ordinance. We are of the opinion, therefore, that on the showing made, the validity of the ordinance is not impeached, and that the court committed no error in admitting it in evidence.
In connection with the ordinance complaint is made of this instruction to the jury:
“If.you find from a preponderance of the evidence that this accident occurred within the corporate lim*275 its of the town of Beaverton; that there was then in force an ordinance of said town limiting the speed of trains to eight miles an hour; that at the time and place of this accident the 'defendants operated defendant’s train at a rate of speed in excess of eight miles per hour, in violation of said ordinance, then the defendants would be guilty of negligence.”
“It was just as much the duty of plaintiff’s intestate to avoid the consequences of the defendant’s negligence, if there was any, as for the defendant’s servant to avoid the consequences of the intestate’s negligence if by any care and foresight he could have done so.”
Automobiles and electric trains, especially, are self-propelled vehicles, measurably on. the same footing in possibilities and capabilities respecting each other at crossings. Instead of being all or largely on one side, the obligation to use care and prudence rests alike upon both parties. As its direction of movement is fixed by its rails and it has acquired the
The scene of the accident in question is in Beaver-ton, where the highway leading from Portland to Hillsboro passes through the town and across the tracks of the defendant company. The highway enters Beaverton from the east, practically parallel with the railway track, and at a distance of probably 40 or 50 feet from the rails, turns south, and crosses the railroad just west of the station at Beaverton. On the occasion mentioned, the plaintiff, accompanied by her brother, was driving an automobile on their way from Portland to Beaverton. They stopped for a few minutes at a confectionery store on the street running east and west. Prom this point, even, they had an unobstructed view of the railway track to the west from whence the train came, for at least a quarter of a mile. Having finished their errand at the confectionery, they proceeded on their way and turned south to cross the railway track. At the turn, both the plaintiff and her brother say that they saw the train approaching from the west, about, as they say, at “the second switch,” which the scale on the map introduced in evidence shows to be between 350 and 400 feet from the crossing. The plaintiff testifies:
“Just as we got on the track the engine died from some cause or other, and the train struck us soon after that. When the automobile stopped, the train was probably about the second switch. I was realizing — I realized ' then the predicament we were in; that the train was coming at a very high rate of speed, coming, down upon us, and I didn’t do anything, only I was thinking probably for some reason*278 or other I could get the machine to go on, or it might go on; and my brother was standing up in the ear in the meantime. * * I don’t know what I did. I was thinking that some way or other I might get the machine to go on, but, of course, it wasn’t a self-starter, and I realized that I couldn’t start it that way, so I did nothing but just sit there.”
Her brother testifies, in substance, that they saw the train after they turned towards the track; that they were about 25 feet from the rails; that the train was about at the second switch; and that it was then approaching at about 12 or 15 miles an hour. He stated further:
“The engine went dead just as we went on to the track. * * I stood up, turned and looked at the train and waved to the motorman to stop.”
Questioned on the subject, he answered:
“Well, I don’t know as,I tried to start the auto, or •anything. I know that I didn’t, because there was no use. * * I thought there was more chance of stopping the train.”
The testimony discloses that the front wheels of the automobile had cleared the track and the rear wheels were between the rails when the train struck the automobile and turned it around, so that it headed north instead of south and was pushed off the track. The brother was pitched through the windshield, sustaining some minor injuries, while the plaintiff herself was not thrown out of the car, but received some injuries to her right shoulder, and upper arm.
“Upon observing a car in the distance the driver of a vehicle can neither recklessly drive upon the crossing in a race with the car, nor is he arbitrarily required to stop his vehicle and wait for its passage. The right of each to the use of the highway is protected, and neither is permitted recklessly to expose the other to danger.. If the driver observes a car on the line at such distance that in the exercise of ordinary prudence he believes he can safely cross, and in undertaking to do so a collision occurs, this cannot be attributed tq negligence on his part.”
“It is true, my train ran against you, but the reason was that the engineer in charge was unskillful,’ and so managed the locomotive that instead of applying the brakes he put on more steam and accelerated the train.”'
On the other hand, as in this instance, it would be poor answer to a charge of contributory negligence to say:
“It is true, I saw the train coming at a high rate of speed, within four hundred feet of the crossing, yet, instead of either stopping or hurrying along across the track, I proceeded very slowly, and so managed my engine that I’ stopped it and stalled the car on the. track immediately in front of the train.”
Considering the case, ’therefore, as one of. negligence charged on one side, and contributory neglifence on the other, it would seem that the testimony of the plaintiff herself makes out a plain case of contributory negligence. It is like the case of Lawrence v. Fitchburg etc. Ry. Co., 201 Mass. 489 (87 N. E.
“The plaintiff and his wife both realized fully their dangerous position. They knew that cars passed the place once about every fifteen minutes. They had overtaken and passed this very car about one mile back from the place of the accident. After their machine was stalled and while the plaintiff was endeavoring to crank it and get it into motion, they saw the headlight of this car, at a distance which the plaintiff first said in his testimony ‘might have been one thousand feet,’ later putting it at ‘fully seven hundred feet,’ and afterwards at ‘about five hundred feet away when I first saw it.’ Mrs. Lawrence, however, made no effort to get out of the car, and merely, when the car was about one hundred feet away, stood up and signaled with her hand to the motorman. The only effort which the plaintiff made to get himself or his wife out of their perilous position was that, in his own words, he ‘did the best he could to crank the car, and used his best effort to start it.’ It is true that the machinery of the automobile would have been in the way of Mrs. Lawrence’s getting out of it on the right-hand side, which was that away from the car; and the plaintiff testified that it'would have been unsafe for him to step .in front of the approaching car, even when it was five hundred feet away, coming at the rate that it was. He said in direct examination that the reason why he did not get out of the way was because he thought the car would stop. In cross-examination he said that it never occurred to him to get out of the way. * * She*282 [Mrs. Lawrence] testified that when she first saw the electric car coming around the corner she would have had plenty of time to get out, and that the reason she did not do so was because she thought the motorman would see the automobile and stop.”
After this statement the court said:
“It is impossible to avoid the conclusion that both of these plaintiffs chose to put all the responsibility for their personal safety upon the defendant’s motorman. Upon their own testimony they made no attempt either to put themselves in safety or to give any warning to the motorman, either by signal or outcry or by running back, until it was too late to avoid the collision. They failed to take not only due care, but any care.”
The result was that in the case of the wife the exceptions to her judgment were sustained, and a like order was made in the action of the husband, unless he should elect to take judgment only for the damage to his automobile. -
As to a question of negligence on one side and com tributary negligence on the other, the case is planq that the plaintiff’s negligent management of the automobile contributed directly to her injury. If, instead of loitering along at a slow rate of speed, she had driven across the track promptly, the collision would not have occurred. But it is manifest that she not only loitered on the way, but so managed her machine as to stop the engine at the point of greatest danger. Such faulty control of the vehicle on the part of the railway company would be the greatest negligence. The same rule applies to the other party.
Some courts have decided that the rule applies where the defendant knew, or by the exercise of rea
“The decision in the Stewart case was by a divided court. The minority were of the opinion that the negligence of the plaintiff had culminated before the injury, and hence that if the defendant by exercising ordinary care could have discovered his peril and prevented the injury, it was liable for' not having done so.”
The truth is that the decision in the Stewart case was unanimously rendered. This court has never to this writing divided on the doctrine under consideration. In the Nicol ,case the' plaintiff had stalled - his automobile at night on the railway track by getting off the planking between the rails, and could not extricate the car. Accordingly, he left it and ran along the track towards the approaching train several hundred feet, striking matches and waving his arms in an effort, to signal the engineer, but without avail, although the engineer could have seen him in ample time to stop. In holding the defendant liable .the court said:
“We have found no case involving facts similar to these present in this case, but we think the case readily accommodates itself to the principles announced in the authorities which we have reviewed.”
The opinion in the Nicol case bears internal evidence of haste in preparation, and neither in its facts nor in its .principles ought it to be regarded as con
“Not only must the defendant have had actual knowledge of the plaintiff’s dangerous situation, but he must have been aware also of the plaintiff’s unconsciousness of or inability to avert the peril. The plaintiff’s right of recovery exists when the defendant, after having discovered his peril, having also*286 reasonable ground to believe him unconscious of danger, or unable to avoid it, might himself, by the exercise pf ordinary diligence, have prevented the mischief which followed. It is when the engineer or motorman sees that a person ‘is apparently placing himself in a position of danger without being aware of the approaching’ train or car that ‘it is plainly his duty to take cognizance of that fact and avoid injury to him if practicable.’ If, on the other hand, the trainmen see a person on or near the track and there is nothing to indicate that he is unconscious of dang’er from the train, no duty devolved upon them to stop. And so where the motorman of an electric car sees a person on the track at a place where the car is plainly visible, he has the right to assume that such person will use his senses and get off the track in time to avoid injury. The doctrine of ‘last clear chance,’ under such circumstances, does not require the motorman to exercise care and diligence to ascertain whether such person, when first seen on the track, is so intoxicated that he will fail to use his senses and to avoid obvious danger. It follows from what has been stated that if the' trainmen, being careful and experienced individuals, in the exercise of their best discretion do not regard a person on the track as being in danger, until, on getting nearer to him, he appears to be unconscious of his peril, and they then do all in their power to prevent an injury to him the company/is not liable. Any evidence of ‘discovered peril’ will usually make the case for the jury.”
As to the necessity of showing actual knowledge on the part , of the defendant, of the peril of the plaintiff, as a basis of recovery on the ground of the last clear chance, the principle is thus stated in the case of Saginaw Lime & Lumber Co. v. Hale (Ala.), 81 South. 15:
“Where plaintiff’s intestate was killed while walking upon defendant’s track, the duty of defendant’s*287 switchman, riding on a car pushed by an engine, so far as subsequent negligence is concerned, dated, not from his discovery of intestate upon the track, but from the moment he became aware that intestate was ignorant- of the approaching train.”
In the case of Texas & P. Ry. Co. v. Breadow, 90 Tex. 26 (36 S. W. 410), it is said:
“The principle, however, has no application in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the new duty was not imposed, though it be clear that by the exercise of reasonable care he might have acquired same. The burden of proof was upon the plaintiff in this case, in order to recover for a breach of such new duty, to establish, not that the employees might, by the exercise of reasonable care, have acquired such knowledge, but that they actually possessed it.” See, also, Oklahoma City Ry. Co. v. Barkett, 30 Okl. 38 (118 Pac. 350).
Denver City Tramway Co. v. Cobb, reported in 164 Fed. 41 (90 C. C. A. 459), was a case in which the plaintiff was injured by walking in front of a moving car. The court, speaking by Judge Van Devanter, said there were two reasons why the last clear chance doctrine was not applicable: First, the exception does not apply where there was no negligence of fhe defendant supervening subsequently to that of the plaintiff, as where his negligence is continuous and operative down to the moment of the injury; and, second, the exception does not apply where the plaintiff’s negligence or position of danger was not discovered by the défendant in time to avoid the injury. A long list of authorities is cited in support of the rule announced by the court.
The other element, applicable to the plaintiff,- is that the negligence of the injured party must have' ceased to operate at the time of the collision, so as to become not a factor but a condition. The precept is thus taught in French v. Grand Trunk Ry. Co., 76 Vt. 441 (58 Atl. 722):
“It is true that when a traveler has reached a point where he cannot help himself, cannot extricate himself, and vigilance on his part cannot avert the injury, his negligence in reaching that position becomes the condition, and not the proximate cause, of the injury, and will not preclude a recovery; but it is equally true that, if a traveler, when he reaches the point of collision, is in a situation to help himself, and, by a vigilant use of his' eyes, ears, and physical strength to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. In such a case the negligence of the plaintiff is concurrent and operative at the time of the accident,. When negligence is concurrent*289 and operative at the time of the collision, and contributes to it, there can be no recovery.”
And, as said in O’Brien v. McGlinchy, 68 Me. 552:
“This rule applies usually in cases where the plaintiff, or his property, is in some position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff cannot, and the defendant can, prevent an injury. * * But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.”
It was held in Norfolk & Western Ry. Co. v. Dean’s Admr., 107 Va. 505 (59 S. E. 389), that where the presence of a person upon the track is observed by careful and experienced men operating the train, and they, in the exercise of their best discretion, do not regard him in danger, until on getting near to him, he appears to be unconscious of his peril, and they then do all in their power to prevent an injury to him, the company is not liable.
The plaintiff must show that at some time, in view of the entire situation, including his own negligence, the defendant was thereafter culpably negligent and that such negligence was the latest in succession of causes. In such a case the plaintiff’s negligence is not the proximate cause of the injury. But this doctrine has no application to a case where both parties are equally guilty of the violation of an identical duty, the consequences of which continue on the part of both to the moment of the injury, and proximately contribute thereto: Southern Ry. Co. v. Bailey, 110 Va. 833 (67 S. E. 365, 27 L. R. A. (N. S.) 379).
In Green v. Los Angeles etc. Ry. Co., 143 Cal. 31 (76 Pac. 719, 101 Am. St. Rep. 68), a woman was
“The doctrine of last clear chance applies in cases where the defendant, knowing of plaintiff’s danger, and that he cannot extricate himself from it, fails to do something which it is in his power to do to avoid the injury, but has no application to a case where both parties are guilty of concurrent acts of negligence, each of which, at the very time when the accident occurs, contributes to it.
“A locomotive engineer has the right to assume that one approaching a crossing has taken the precautions which the law requires him to take to insure his own safety, and that he is aware of the situation, and will remain in a place of safety, and the mere fact that he gives no evidence of a knowledge of the approach of the train does not indicate to the engineer that he is about to pass in front of it. * *
“Where, immediately after a person approaching a railroad track stepped upon the track, the engineer did all in his power to avert the accident, blowing the whistle, applying the air brakes, and reversing the engine, but without avail, he did all that the law required of him.”
The prevailing opinion was written by the late Mr. Justice Lorigan, who seems to have exhausted the subject in his discussion.
In the early case of Cogswell v. Oregon & C. R. R. Co., 6 Or. 417, Mr. Justice Boise wrote to the effect that an engineer in charge of a train approaching a man on the track “had a right to suppose that the deceased would observe the train by his senses, and that he was in no danger until the train was so near him that he ought to be leaving the track to avoid it.” The opinion there points out, also, the imprac
In Butler v. Rockland etc. Ry. Co., 99 Me. 149 (58 Atl. 775, 105 Am. St. Rep. 267), the plaintiff drove out of a private alley or passageway in front of a train, and was-injured. It was held that his contributory negligence continued up to the time of the collision, and that the defendant had a right to assume that one crossing the track would continue his movement or stop in safety: See, also, Dyerson v. Union Pacific Ry. Co., 74 Kan. 528 (87 Pac. 680, 11 Ann. Cas. 207, 7 L. R. A. (N. S.) 132); Himmelwright v. Railroad Co., 82 Kan. 569 (109 Pac. 178). In many of the cases treating of the appearance of someone on the track, it is said to be the duty of the engineer or motorman in charge to sound an alarm by whistling or ringing a bell, or some such procedure. This is for the purpose of warning the individual who is subsequently injured. But where the plaintiff saw the train approaching, the failure of the trainmen to sound a whistle or ring a bell has no causal connection with the injury: Lambert v. Southern Pacific Co., 146 Cal. 231 (79 Pac. 873). In the instant case it is conceded that the plaintiff saw the train approaching, and had all the notice that could have been given to her by any whistle or. bell. As to trespassers upon a track, it has often been held that a railway company owes them no further duty than to avoid willfully injuring them. The plaintiff here, however, was not a trespasser. She
“In order to invoke‘the last clear chance’ doctrine, the plaintiff must plead and prove that the defendant, after perceiving the danger and in time to avoid it, negligently failed to do so” — citing Drown v. Northern Ohio T. Co., 76 Ohio St. 234 (81 N. E. 327, 118 Am. St. Rep. 844, 10 L. R. A. (N. S.) 421).
An extended note to Union Pacific Ry. Co. v. Cappier, 69 L. R. A. 513, 550, cites with approval the opinion of Mr. Chief Justice Martin in Campbell v. Kansas City, Ft. S. & M. R. Co., 55 Kan. 536 (40 Pac. 997), teaching the doctrine to be that the man in charge of a train, seeing anyone on the railway track apparently in the possession of all of his faculties, not suffering from any disability and aware of the approach of the train, has a right to rely upon the presumption that the individual in view will get off the track, and this until the last moment, when it becomes apparent
Although the plaintiff might be considered negligent in not attempting to start her car after it stopped on the track, yet a jury might think she did not have time before the train collided with her machine. This, in turn, might disclose that if she did not have time to start her car, neither did the motorman have time to stop his train after discovering that she could not move, with the result either that her negligence continued operative to and including the moment of impact, or that the accident was unavoidable. The testimony seems to present a mixed question of law and fact respecting the application of the last chance doctrine to be submitted to the jury.
In Ridley v. Portland Taxicab Co., 90 Or. 520 (177 Pac. 429), this court, speaking by Mr. Justice Harris, discussed the distinction between a motion for a non-suit, and a motion for a directed verdict, saying, in effect, that they give rise to the same inquiry as~ to the sufficiency of the evidence, but that while a non-suit dismisses the action without prejudice to another on the same ground, the directed verdict is conclusive against any subsequent effort to recover for the same injury. The conclusion reached is stated thus:
“Even though a complaint omits some material allegation a motion for a directed verdict, based upon the fact of such omission, should be denied, especially where the objection can be cured by an amendment, and the plaintiff’s evidence, if true, makes a case against the defendant” — citing authorities.
We pass to a consideration of the verdict already quoted. Construing it as any other writing, by its actual terms, there is nothing in it to charge the defendant Woodson. He is not in any way mentioned therein. No judgment against him properly could be rendered on such a verdict. It would be at least erroneous. But the liability of the defendant company, under the allegations of the complaint, and the undisputed testimony, depends entirely and exclusively upon the liability of Woodson, under the rule of respondeat superior. The only negligence imputed by the complaint is predicated upon his action or want of action. A leading case on this subject is Doremus v. Root, 23 Wash. 710 (63 Pac. 572, 54 L. R. A. 649). This was an action brought against a railway company and its conductor for an injury inflicted upon the plaintiff by a train in charge of the conductor; and, as in the instant case, the only negligence appearing was that of the conductor. The verdict was in this language:
“We, the jury, duly sworn and impaneled to try the above-entitled cause, find for the plaintiff and against the defendant, the Oregon-Washington Railroad & Navigation Company, and assess' his damages at the sum of $15,100 and the costs of this action.”
On this verdict judgment was rendered in favor of the defendant Root, the conductor, for his costs and
“But the defendants in this kind of action are in no sense joint tort-feasors, nor does their liability to the plaintiff rest upon the same or like grounds. The act of the employee, even in legal intendment, is not the act of his employer, unless the employer orders the act to be done or subsequently ratifies it. For injuries caused by the negligence of an employee not directed or ratified by the employer, the employee is liable because he committed the act which caused the injury, while the employer is liable, not as if the act were done by himself, but because of the doctrine of respondeat superior, — the rule of law which holds the master responsible for the negligent act of his servant committed while the servant is acting within the general scope of his employment, and engaged in his master’s business. The primary liability to answer for such an act, therefore, rests upon the employee, and when the employer is compelled to answer in damages therefor he can recover over against the employee. *. * So, where the employer is sued separately for the wrong, he can bind the employee in any judgment that may be obtained against him, by notifying the employee to come in and defend the action. * * So, also, in such an action, whether brought against the employer severally, or jointly with the' employee, the gravamen of the charge is, and must be, the negligence of the*298 employee; and no recovery can be had unless it be proved, and found by the jury, that the defendant’ was negligent. Stated in another way, if the employee who causes the injury is free from liability therefor, his employer must also be free from liability.”
Thus far the Doremus case is like the instant action. As stated, the trial court had entered a judgment in favor of the defendant Root, and based permissibly and probably upon the proposition that the court had jurisdiction of the persons of the litigants and of the subject matter, and that the judgment in favor of the conductor was one which was possible within the issues of the case, the court held that it was not void, but merely erroneous, and, not having been attacked by appeal or other direct proceeding, it was a final adjudication of the issues between the plaintiff and the conductor. Going further, the court held that, inasmuch as the conductor was completely released by the final adjudication in his favor, nothing remained hut to render also a judgment in favor of the defendant company. The court said, however:
“Were the judgment against Root void, or were it before us for review upon this appeal, or on a separate appeal, by the present respondent, we would have no hesitancy in reversing both judgments, and remanding the cause for a retrial on the whole of the issues.”
Substantially, that is the situation which confronts us in the present instance. While the verdict does not fasten any liability upon Woodson, and hence does not charge the defendant company, there is no adjudication in favor of Woodson to act as an obstacle in reversing the judgment against the company. Confronted with the indispensable condition of proving negligence of Woodson in the manner charged,
In City of Anderson v. Fleming, 160 Ind. 597 (67 N. E. 443, 66 L. R. A. 119), Fleming had previously failed in an action against a contractor for improving a street in the City of Anderson for injuries suffered by her in falling into an excavation left by that defendant unguarded in the street. She then brought an action directly against the city, which successfully set up the judgment in favor of the contractor in that former action in bar of the latter action. The case was made to depend upon the principle that primarily the city was responsible for keeping its streets in repair, but that, having contracted with another party to repair the street, providing as one of the terms of the stipulation that the contractor should keep the street safe for the use of pedestrians, it would have a right to call him in to defend an action against it. Hence, if owing to the failure of the injured party to recover from the contractor in a suit directly against him, his liability, was barred, then the liability of the city also was extinguished. Its rights would be prejudiced by a judgment against it under such conditions, because it had lost its right to compel the contractor to respond over to it, as he had been exonerated by the judgment in his favor and was immune against reimbursement of the city.
In Indiana Nitroglycerine etc, Co. v. Lippencott Glass Co., 165 Ind. 361 (75 N. E. 649), in an action against the corporation and its servant for negligence solely of the latter, it was held erroneous to charge the jury that a verdict might be rendered against either or both, as such an instruction would tend to deprive the corporation of its right of subrogation
“No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court.”
The pleadings are here, the verdict is here, and the judgment is here. The error of entering such a judg
The judgment is reversed.
Reversed. Rehearing Denied.