Lead Opinion
This сase ivas first tried with a jury, and upon appeal to this court the judgment was reversed (
The second trial was upоn the same pleadings and evidence. The evidence upon the former trial was read from the bill of exceptions. The question presented is as to the instruction in favor of the plow сompany. It is insisted that the former decision was that the plow company is not liable. Upon the first appeal it was held that, if upon this evidence the Murdocks were not liable, it could not bе held that the plow company was liable. The verdict was therefore “in irreconcilablе conflict with itself,” as said in Gerner v. Yates,
The expert Bartlett wаs responsible for the management of the machinery. Both the plow company and the Murdocks relied upon him as one having expert knowledge, and, under this evidence, if there was negligence which caused the injury, it was the negligence of Bartlett. The question was whether these defendants were responsible for his conduct. The answer of the jury in the first verdict was that the plow cоmpany was responsible for Bartlett’s conduct of the demonstration, but that the Murdocks were nоt. The majority of this court thought that this verdict was inconsistent. The place of the demonstration wаs at or near the place of business of the Murdocks, a place selected by them. If this was a dangerous place for the purpose, they are not less responsible for that fаct than is the plow company. The Murdocks were interested financially; they expectеd to reap profits from the sales which this demonstration would induce; they were present, had nоtice of the details of the arrangements and countenanced the proceedings, and undoubtedly had authority to stop them if bystanders were endangered ’
We are constrained to add that there are unfortunate expressions in оur former opinion which might mislead the most prudent trial court. The fault of this unfortunate mistrial is not with the trial court, nor yet necessarily with the writer of the former opinion, but is chargeable to the writer herеof and others of the majority who insisted upon certain expressions, without sufficient thought of inconsistencies caused thereby.
The record shows that the case was tried against all defendаnts, and, after the court had fully instructed the jury, the plow company asked for an instruction to find in its favor. The court thereupon so instructed the jury, and there was a verdict and judgment in favor of the plоw company and against the plaintiff. From this judgment the plaintiff has appealed.
There is in the record no verdict or judgment upon the issues presented as against the other defendants. So fаr as this record shows, the action against the Murdocks is still pending. The plaintiff’s attorney, however, stated upon the argument that the jury found a verdict in favor of plaintiff and against the Murdocks, and that, if this judgmеnt in favor of the plow company was reversed, the judgment against the Murdocks would be set aside and vacated.
If the plaintiff, within 30 days, files in this court a certificate of the clerk of the district court showing that the judgment against all other defendants has been set aside and vacated, the judgment in this case in favor of
Reversed on condition.
Concurrence Opinion
concurring.
I concur in the decision аnd judgment in this case, but base my concurrence upon the final action of this, court on the motiоn for rehearing as reported in