208 P. 1063 | Mont. | 1922
Lead Opinion
delivered the opinion of the court.
This is an action brought to recover $10,000 damages alleged on account of personal injuries sustained by the plaintiff, and injury to a Ford automobile belonging to and being driven by the plaintiff, by reason of having been struck on a railroad crossing in the town of Forsyth on the evening of September 13, 1919, by a switch engine operated by the defendant. Upon issues being joined, the case was tried to a jury and a verdict rendered in favor of the plaintiff for the sum of $8,000, upon which judgment was made and entered. The appeal is from the judgment and an order denying defendant’s motion for a new trial.
Though several errors are assigned, in our opinion but two questions are involved necessary for consideration determinative of the ease, viz.: (1) Was the plaintiff guilty of such contributory negligence as to defeat his right of recovery? and (2) Were the damages awarded so excessive as to indicate passion and prejudice?
1. It appears that about 6:30 P. M. September 13, 1919, in the town of Forsyth, the plaintiff was driving a Ford touring car south along Tenth Avenue, and when crossing the railroad tracks of the Northern Pacific Railroad Company where thejr traverse such street he collided with a switch engine operated by the defendant, resulting in demolishing the automobile and serious injury to the plaintiff. At the time of the accident Hugh Daugherty was riding with the plaintiff, seated alongside of the plaintiff in the front seat. The railroad tracks cross Tenth Avenue from east to west and from the point of intersection the street runs north and south. There are three principal railroad tracks, and from the north to the south they are: The main line, being the first track; track No. 1, being the second track; and track No. 2, being the third track. The following diagram will illustrate the situation on the
As plaintiff approached this crossing, it was blocked by a freight train which was slowly moving west over the main line, and after it had passed, his view of track No. 2 to the west was shut off .by reason of a long string of freight-cars standing on that track, the last of which, being the east end thereof, was a large gondola car which extended into the middle of the street on the crossing. The next car to it, west, was a large furniture or -automobile ear, and thence along that track freight-cars extended in unbroken line in a considerable number. When the plaintiff stopped to permit the moving freight
The evidence discloses that the plaintiff was rendered unconscious in consequence of the accident and remained in a semi-comatose state from Saturday, the day of the accident, until the following Tuesday. The age of the plaintiff is not shown, but it appears that he is a married man, having a family consisting of his wife and two children, then residing with him. He had lived in Forsyth for about eleven years and was engaged in the automobile and garage business. He was thoroughly familiar with the grade crossing on which the accident occurred, and says that he had used the crossing a good many hundred times prior to the accident. In describing his physical condition prior and subsequent to the accident, he
Special damages pleaded, and for which recovery was sought by plaintiff—i. e., the sum of $600, the value of the Ford automobile, $100, the reasonable value of medical service, medicines, and nursing, and the sum of $500 for loss of plaintiff’s time in connection with his business operations—are amply sustained by the proof. Other damages alleged and claimed are general in character, based upon his injuries, physical pain, mental suffering, and the extent and duration thereof.
Dr. W. A. Alexander, who gave first-aid treatment to the plaintiff at the time of the accident, testified (concerning plaintiff’s injuries) on direct examination in part: “I was driving by in my car at the time coming north on Tenth Avenue from the south side up Tenth Avenue to the grade crossing. I did not see the accident there that evening. When I arrived there I found Jack lying there, and I went up and shook him a little bit, and he rallied then, and we got him up and got one man on each side of him and helped him into my car. The cabooses were across the track then, and I couldn’t get by, and when they pulled out I took him to my office and treated him. I had occasion to examine Mr. Everett
On cross-examination the witness testified: “Q. What time of the evening was it that you saw the scene of the accident? A. I should judge about a quarter of 7 in the evening when I saw him. I just came from dinner over at Mrs. Meadors. * * * Q. Did you make a digital examination of the bones of the head? A. Yes. Particularly with reference to the left parietal bone where the cut was. Q. Will you indicate for the benefit of the jury where the cut was. About the approximate location of the wound you found ? A.. It was about there [indicating]. Q. You are now indicating a point approximately three inches above and one inch forward of the ear? A. Yes. Q. Possibly two inches in length? A. Yes. Q. You didn’t find any indication of fracture? A. No, sir. Q. Did you attempt to palpate the bones in that particular vicinity? A. Yes, sir. Q. And you got no movement? And no crepitus? A. No, sir. Q. Then to the best of your examination there was no fracture? A. Not to the best of my knowledge. Q. And as a matter of fact he was just in the ordinary condition that a man would be who was knocked out? A I just give him first-aid treatment. Q. When you say he
Dr. A. C. Wilson, who attended the plaintiff during his illness after the first-aid treatment administered by Dr. Alexander, testified in part on direct examination as a witness on behalf of the plaintiff as follows: ”Q. Did you have occasion to attend professionally Mr. Everett immediately after the collision over on the Northern Pacific Railway last summer, in September ? A. Not immediately. Some little time after. I couldn’t tell exactly how long after, but probably an hour and a half or two hours probably. I saw him at his home, up on the Flat, or the first house on the Flat, on the right-hand side of the road. It is about two miles, maybe a little less, from the place of the accident up to his home where I saw him. I examined Mr. Everett at that time and place. I found his condition, he was practically unconscious, practically so, and, on examination of his wounds, I found a wound about an inch and a half long, probably, on the left-hand side of the median line of the vertex of the head, and there was also a contusion on the right-hand side, but no separation of the surface. On the back of his head there was a lump over the back of his head and a few scars over the right part of the face, and there was contusions over that, and his right elbow. On the outside of the right knee of the right leg, and he was all dirty, of course, from coal, and black-looking, as we generally find them when injured on the track. I examined his back also. It bore the appearance of being some contusion over there, scraped a little, but there was no visible separation of the tissues—that is, we could call it kind of bruised, just a little bit below the shoulders. Q. And with respect to the spinal column where was that injury located? A. A little bit below the shoulders in the dorsal region, a little bit to one side of it, and a little below the shoulders. Q. Now, Doctor, I will ask you to describe the patient’s condition, apparent condition, from your examination, respecting any, if there was any, nervous disorganization, at this time? A. Of course he presented all the appearances of a person knocked out, stunned, contusions on
Dr. Wendell Cotton, a witness on behalf of the plaintiff, testified that the plaintiff called upon him for examination and treatment at his office in Forsyth about the twenty-third day of September, 1919. His testimony given concerning his examination made of the plaintiff respecting the injuries by him sustained is covered by the following: “Well, at that time he still showed scars on his scalp. There were two on the left side of the head, one about two inches below the median line above the left ear, and I think about two inches in length. The other one was about an inch above this running diagonally over toward the center; a scar on the right side of the protuberance of the parietal bone. He showed considerable weakness and pain on bending his back, in stooping over, and in various other positions and tests we put him through. He showed considerable bulging of the left eardrum. His hearing was considerably diminished on that side, so -that my wateh could be heard only at a distance of six inches, whereas on
The plaintiff bases his right of recovery upon the defendant’s negligence in operating the switch engine within the
It appears that a flagman or switchman was provided at the time by the defendant at this crossing, but he did not see the plaintiff until the latter was on track No. 1, too late to avoid the collision. The switch engine was running at about fifteen miles per hour, and the whistle was not sounded. There is no dispute with reference to the partial obstruction of the street on track No. 1 by the gondola freight-car.
The line of demarcation between contributory negligence as
If the evidence showed lack of proper precautions exercised by the plaintiff, under former holdings of this court, there would be no escape from denying to the plaintiff the right of recovery, as a matter of law, because of his contributory negligence; but here the evidence is such that the question was one proper for determination by the jury.
This case is clearly distinguishable from Hunter v. Montana Cent. Ry. Co., 22 Mont. 525, 57 Pac. 140; George v. Northern Pac. Ry. Co., 59 Mont. 162, 196 Pac. 869, and Keith v. Great Northern Ry. Co., 60 Mont. 505, 199 Pac. 718. In Hunter v. Montana Cent. Ry. Co. the obstruction of view of the grade crossing consisted of willows growing along the railroad track. Plaintiff’s decedent, with companions, was crossing the track in a surrey pulled by a team of horses, on a dark night; the crossing was known to them; they neither stopped, looked nor listened, and on discovery of the approaching train, at a distance of about forty-five feet from the track, they attempted to clear the crossing ahead of the train, resulting in the death of the decedent. Plaintiffs were properly denied recovery, because of contributory negligence.
In the ease of George v. Northern Pac. Ry. Co. the district court granted a nonsuit and entered judgment for the defendant, which was by this court affirmed. There it appeared that on Main Street, in Miles City, which runs north and south, the defendant company’s tracks crossed the street in an easterly and westerly direction. The railroad tracks were four in
In the case of Keith v. Great Northern Ry. Co. it appeared that a Ford automobile driven by the plaintiff, Keith, was struck by a train operated by the defendant at its crossing on Oak Street, in the city of Helena. Oak Street runs in a northerly and southerly direction, and as the plaintiff approached the crossing from the north he was driving at a rate of speed in excess of eight miles per hour. His view of the railroad tracks was unobstructed until he reached approximately the northerly line of the railroad right of way. The plaintiff, according to his testimony, was twenty-six feet from the north rail of the railroad track when he first saw the train approaching. “His statement of his actions from the time he saw the train was as follows: ‘When I came in sight of the road [railroad] I saw the train coming, and I shut off, and I thought I would easily stop before I got in front of the train, at the speed it was going. I shut her right off. The front wheel went across the track. It is planked for only one rig, one team, or whatever it might be to cross, and when she came around, the front wheel had
Where the view of the track is obstructed, the traveler on a street or highway must exercise greater care and caution, but in a ease such as this his very caution lulled him into a feeling of security, and the delay incident insured the collision. Provided the driver of a vehicle may stop in a safe place, he must stop in self-protection after he has actually entered upon the right of way of a railroad at a grade crossing, if necessary; but no more is required than that he shall exercise such degree of vigilance and caution to avoid accident as a reasonably prudent man would do under like circumstances. As was well said by Mr. Justice Angelotti, speaking for the supreme court of California, and applicable to the facts in the case before us: “If he looked and listened attentively, and could not see or hear the train [locomotive], and proceeded to leave his place of safety and enter upon a place of danger only after so doing, it cannot be held that he was guilty of negligence as a matter of law in starting forward to cross the track.” (Bilton v. Southern Pac. Ry. Co., 148 Cal. 449, 83 Pac. 443.)
And this rule applies more pertinently to the facts in the instant case, where the defendant negligently obstructed both the crossing and the plaintiff’s view of the track beyond. In our opinion, the evidence is such that the question of contributory negligence was properly submitted to the jury for determination as one of fact.
2. From a careful study and review of all of the evidence
If the record afforded us any substantial basis to reduce the amount of the judgment based upon the verdict; we should not hesitate in reducing it materially. We are left in the realm of speculation and have no basis upon which to declare the proper amount to be allowed the plaintiff as his damages; to do so would be to substitute ourselves for the jury. Mr. Justice Farr, speaking for this court in the case of Gillespie v. Great Northern Ry. Co., 63 Mont. 598, 208 Pac. 1059, has declared the rule as follows: “The verdict of a jury is entitled to great weight when rendered on evidence reasonably sufficient to sustain it, but when rendered contrary to the evidence, or against the great preponderance of the evidence, it becomes the duty—not merely the right—of the court to set it aside, reluctant though we are to grant a new trial on that ground alone. (Wegge v. Great Northern Ry. Co., 61 Mont. 377, 203 Pac. 360.) If the excessiveness of the verdict could be accounted for on any ground other than passion or prejudice, a new trial would not be granted, but the verdict would be reduced. Only when it is clear that the excessiveness of the verdict is a result of miscalculation, as is sometimes the ease, should a court reduce it. (Hall v. Northern Pac. Ry. Co., 56 Mont. 537, 186 Pac. 340.) The matter of ascertainment of damages in a personal injury action is essentially a question for the jury, and this court should not be called upon to take the place of a jury in fixing the amount of plaintiff’s recovery in any given ease.”
More than twenty years ago Mr. Chief Justice Brantly well stated the rule in this jurisdiction applicable in this class of eases, as follows: “Courts are reluctant to interfere with the verdict of a jury, and will not do so, on the ground of excessive damages given under the influence of passion or preju
In this case, as in the Gillespie Case, the amount of the verdict is not justified by the evidence, and can be accounted for only by reason of passion and prejudice; accordingly a retrial is necessitated.
The judgment and order are reversed and the cause is remanded for a new trial.
Beversed and remanded.
Dissenting Opinion
I dissent for the sole reason that to
my mind the evidence furnished foundation enough to make the award no more than fair compensation for the injury inflicted upon the plaintiff.