122 P. 280 | Mont. | 1912
delivered, the opinion of the court.
This is the second time this case has been before the court. (See Knuckey v. Butte Electric Ry. Co., 41 Mont. 314, 109 Pac. 979.) After remittitur filed in the district court, the plaintiff amended his complaint so as to charge as follows: “That while plaintiff was such passenger, and before the said car reached his aforesaid destination, plaintiff notified the defendants that he wished to get off the car at the crossing of the aforesaid streets, Warren and West Galena; that the defendants, in compliance with this direction from the plaintiff, slowed up said car to a very slow pace, to-wit, to about a walking pace; that plaintiff, believing that the car would come to an immediate stop, went upon the front steps and platform of said car preparatory to alighting from said car when it came to a stop; that the defendants did not stop the said car at said crossing, but ran it a short distance, to-wit, about a hundred feet, past said crossing at said slow rate of speed, and then, while plaintiff was still standing upon the front platform and steps of said car, with the knowledge and consent of the defendants, find waiting for and still thinking that the car would come to an immediate stop, the defendants in disregard of their duty to the plaintiff, so carelessly and negligently managed, operated, and ran said car, and so carelessly and negligently, suddenly and violently accelerated the speed thereof, and so negligently caused the car to lurch forward violently, that plaintiff was violently thrown from said car to the ground, and by reason .thereof” received Ms injuries. The defendants answered. A trial was had before a jury, which returned a .verdict for the plaintiff in the sum of $10,000. From a judgment on the verdict and an order denying a new trial, defendants have appealed.
1. It is contended that the court erred in • allowing the amended complaint to be filed, for the reason that it states a different cause of action from that set forth in the original
2. Plaintiff testified that when he stepped from the car to the platform he said, “Warren,” referring to Warren street, in an ordinary and natural tone of voice. He was then asked to speak the word as he did on the night of his injury. His answer was: “Well, I stepped out, and I said the word ‘Warren.’ ” Defendants moved that the answer be stricken out on the ground that plaintiff had already testified concerning the tone of his voice, and it was for the jury to determine what his ordinary tone of voice was, after listening to his testimony. The motion was denied. We find no prejudicial error in the ruling. Plaintiff also testified: “When I said ‘natural tone of voice,’ I meant the tone of voice one would use when he stepped out on the platform to notify the motorman.”
3. Plaintiff was allowed to testify over objection that on other occasions, desiring to have the car stopped, he had used the word “Warren” to indicate his wish to alight at that street.
4. While the plaintiff was under cross-examination, he said, “I had ridden there before many times.” He was then asked by defendants’ counsel: “And were the conditions there the same as they had always been prior to that time when yoxi were on the car? Mr. Maury: We object; we were not allowed to go into the -conditions; I don’t think it is fair on the part of the other side to go into the conditions. The Court: The objection is sustained; it is not proper cross-examination.” It is now insisted that the court should have allowed the witness to answer, and an elaborate argument is advanced wherein many suggestions are made concerning the competency, relevancy, and materiality of the inquiry. We think the court unduly restricted the cross-examination, and again suggest the propriety
5. Plaintiff’s witness Boulter was asked on redirect examination whether he had any expectation of getting a reward for his testimony. Before objection could be interposed, he answered, “None whatever.” Defendants’ counsel moved to strike the answer. The motion was denied, and the ruling is assigned as
6. Defendants interposed a motion for a nonsuit and also a motion for a directed verdict, both of which were overruled. These motions were based, primarily, upon an assumption that the testimony failed to disclose knowledge on the part of the motorman that plaintiff wished to alight; that he did not hear the word “Warren” pronounced by the latter, and had no knowledge that he was on the platform of the car preparatory to getting off. The second contention is that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff testified: “When I got on the platform, I says the word ‘Warren’ to the motorman, Mr. Bundblad. When I said this, I might have been a distance of about two feet from him, but it is close on the platform; you would naturally run against him in coming out of the car. I spoke this word in my natural tone of voice. Just after I said this word ‘Warren,’ the car slowed down as it neared the east crossing. It slowed down to about four or five miles an hour, an ordinary walking pace, at the last crossing of Warren and East Galena. At the time I was standing on the platform; I was standing there ready to step down when the car stopped, and when it got down to this very slow speed, I stepped down on to the top step. I was then facing east, with my hand on the front handrail, my right hand. From the last crossing of Warren the ear proceeded at that” rate of speed about a hundred or a hundred and fifty feet. Then it started ahead violently with a terrible jerk and threw loose my hand and threw me to the ground. After I went out on the front platform, the motorman slowed up the car when I mentioned the word ‘Warren’ to him. He shut the power off to slow it up. I didn’t see him do anything. • I heard the controller click around that shuts the power off.” Whether the motorman heard the word “Warren” as spoken by the plaintiff,
We are also of opinion that the question of contributory negligence was properly submitted to the jury. It is doubtless true
7. Defendants’ counsel requested the court to charge the jury that the plaintiff could only recover by proving the specific allegations of his complaint relating to negligence. The court struck out the word “specific” on motion of counsel for the
8. There is a suggestion in the brief that the complaint upon which the plaintiff went to trial does not state facts sufficient to constitute a cause of action. We think the complaint is sufficient.
9. In- our judgment the damages awarded are excessive, but not sufficiently so to evidence passion or prejudice in the minds
The cause is remanded to the district court of Silver Bow county, with directions to grant a new trial unless, within thirty days after remittitur filed, the respondent shall consent in writing that the judgment for damages be reduced to $6,000. If such consent is given, the judgment shall be modified accordingly as of the date of its original entry, and, together with the order denying a new trial, will stand affirmed. That part of the judgment relating to costs in the court below is not to be disturbed. Respondent to recover costs on appeal.
Remanded.