110 P. 226 | Mont. | 1910
delivered the opinion of the court.
This is the second appeal of this case. (Neary v. Northern Pacific Ry. Co., 37 Mont. 461, 97 Pac. 944, 19 L. R. A., n. s., 446.) Upon the first trial the district court of Yellowstone county directed a verdict for the defendants, and judgment in their favor was entered accordingly. This court reversed the judgment, and remanded the cause for a new trial. It was held (1) that the deceased, Neary, was guilty of contributory negligence, and (2) that the cause should have been submitted to the jury upon the question of the defendants’ negligence in failing to use reasonable care to avail themselves of the last clear opportunity to avoid the catastrophe. The second trial resulted in a verdict for the plaintiffs in the sum of $25,000 damages. From a judgment entered thereon and an order denying a new trial, the defendants have appealed.
The main facts in the ease are fully set forth in the former opinion of the court, prepared by the chief justice. As to the statement therein contained it. is now said by counsel for the appellants, in their brief: “As the statement of facts so fully set forth in the court’s opinion will be sufficient for practically all the purposes of a statement in this brief, we will herein adopt that statement, with three exceptions: (1) The first of these exceptions is the apparent assumption, as an established fact, that Neary was upon the tracks of the defendant railway company in the discharge of his duties and with the express consent of the railway company. "We claim that it can neither be assumed nor found as a fact that the employees of the C., B. & Q. Bail-way Company used the tracks and switches of the defendant company’s yards, by agreement, as charged in the complaint,
1. At the second trial the ordinance of 1116 city of Billings declaring it to be unlawful to move trains within the city limits at a rate of speed exceeding six miles per hour was offered in evidence and objected to by defendants’ counsel on the ground “that the ordinance is unreasonable and not within the power of the city council, as applied to the defendants in these yards, for the reason that there is no open crossing on said tracks for approximately 2,000 feet, used by the public eastward of this accident, and approximately 4,250 feet or three-quarters of a mile westward. The yards were inclosed by a fence, and were the private yards of the company, not used by the public. The only tendency of the evidence would be to prove primary negligence and that would be immaterial in this case.” The court overruled the objection.
The first point urged is fully explained by the phraseology of the objection itself, and will be considered at this time. The
It is alleged in the complaint that on the date of the accident there was “in force in the city of Billings” the ordinance in question, which had been duly enacted. This allegation is met by a general denial on the part of the appellants. It is asserted by counsel that their denial that the ordinance was “in force” gives the right to contend that it is unreasonable and void as applied to this particular portion of the city’s area. We are unable to agree with them in this. To us it seems clear that the denial in the answer simply raises the question as to whether any such ordinance as that referred to in the complaint was in
It is urged by appellants’ counsel in their reply brief that as the evidence offered by them relating to the nature of the country to which the ordinance prima facie applied was admitted without objection, while they objected to the ordinance, the court’s charge thereon, and the refusal of their offered instructions as to the same, a theory of the case was thus' established in the court below which may not be departed from in this court, and, as the case was tried as if the issue was made, it is now too late to urge the contrary (citing Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994). We, however, are unable to determine that any such theory was adopted in the district court. It is true that the testimony referred to was received without objection, but the purpose of offering it was not explained at the time, and apparently it was material and competent as bearing upon other issues in the case. The ordinance itself was offered generally, and the court gave no reason for its ruling on appellants’ objection. For aught we know, the point now raised by the respondents may have been the basis of that ruling.
2. Defendants, at the trial, after all of the evidence had been submitted, moved the court for an order directing a verdict in their favor. The motion was properly denied. The testimony at the second trial was substantially the same as at the first. This court held that the ease should be submitted to the jury, and the trial court properly followed that direction. Under these circumstances the former decision established the law of the case. (International Boom Co. v. Rainy Lake River Boom Co., 104 Minn. 152, 116 N. W. 221; O’Neill v. Northern
3. The complaint is peculiar in its averments. It alleges that “the said defendants then and there unlawfully and grossly negligently and wantonly omitted to give any signal by bell or whistle,” and “ran and drove the said train at a rate of speed grossly negligently and wantonly high,” and “unlawfully, wantonly and grossly carelessly and negligently drove and ran said locomotive and train upon and over the said Neary.” The court, at the request of the plaintiffs, gave certain instructions to the jury, in no one of which was any reference made to the necessity of proving that the negligence of defendants must have been of the quality designated as “grossly wantonly,” etc. These instructions furnished the jury direct authority to return a verdict in favor of the plaintiffs even though they believed the defendants guilty of simple, or ordinary, negligence only. The defendants requested the court to charge, in effect, that, unless the jury found them guilty of gross and wanton negligence and recklessness, the plaintiffs could not recover. This the court refused to do. Error is assigned upon the ruling. This court in the case of Robinson v. Helena L. & Ry. Co., 38 Mont. 222, 99 Pac. 837, said: ‘ ‘ The rule contended for by counsel, that where the allegation is of willful or wanton wrong, proof of simple negligence will not justify a recovery, is, we think, founded upon correct reason, and is supported by the great weight of authority.” It is claimed that this case falls within the rule there laid down. But there is something more in the complaint than a single allegation of reckless and wanton conduct on the part of the defendants. It may, perhaps, be admitted, as suggested by counsel for respondents, that in a case where no recovery could be had except by showing a willful wrong or such wantonness as would require or justify the inference of a purpose to injure, a recovery could not be had upon an averment of simple negligence; and, on the contrary, that if the complaint charged a willful and deliberate purpose to inflict a wrong, without any allegation that the injury was occa
In the case of Turtenwald v. Wisconsin Lakes Ice etc. Co., 121 Wis. 65, 98 N. W. 948, called to our attention by appellants ’ counsel, the court said: “It would be far safer, in drafting a complaint in an action like this, to appreciate that a claim for an injury wantonly inflicted is one thing, and one for injury attributable to mere actionable negligence is a far different thing; and- if it is desired to state a cause of action of the latter character, the pleader should omit all such words as ‘willful, reckless and malicious’ as regards the conduct of the defendant.” We consider this sound advice. In that case the complaint charged that the servant of the defendant acted “carelessly, recklessly, negligently, willfully and maliciously.” The court also said: ‘ ‘ The complaint admits of a construction charging defendant. with being guilty of a greater wrong than mere failure to exercise ordinary care. However, on the whole, it seems the parties on both sides, notwithstanding the peculiar language of the complaint, treated the action in the court below and in this court as one to recover compensation for damages- attributable to ordinary negligence. In that situation it seems we are war-
But it is said in appellants’ reply brief (relying upon sections 5253, 5295, 5300, 5306, 5331, 5354, and 5355, Revised Codes, and
4. The court gave ¡the following instructions to the jury:
“No. 7. As a general rule contributory negligence on the part of the deceased is fatal to a right of recovery in actions such as this. But it is not an invariable rule that, where one through his own negligence puts himself into a place of danger, a right of recovery is denied to him or to his heirs or representatives in case of his death because of injuries inflicted by another. The general, rule that one’s own negligence in such case precludes a recovery is subject to the qualification that where the defendant has discovered or should have discovered the peril of the position of the one killed, and it is apparent that he cannot escape therefrom or for any reason does not make an effort to do so, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury; and if this is not done, he becomes liable, notwithstanding the negligence of the injured party or deceased. And this is true not only as to the trespassers upon a railway track in the way of passing trains, but also as to employees who may become so absorbed in their duties that they do not observe the signals. "In no case may the rail-, way company, after the peril becomes apparent to those in charge of a train, and especially so after it is obvious that the danger is not appreciated by the person in the perilous situation, omit any reasonable effort to stop the train and prevent injury.
“No. 8. Accordingly, if you find that the defendant Frost saw the deceased upon the track, and saw that for any reason he was not making an effort to leave it after the usual warning of the approach of the train had been given by blowing the whistles, and he could by the exercise of all reasonable care, after he recognized or ought in the exercise of reasonable care to have recognized that the deceased was apparently oblivious
“No. 10. It was the duty of the engineer if he saw the deceased on the track to give the usual warning signals, at such a distance as that if they should not be heeded there would remain time, considering the speed at which the train was going, to stop it before striking the deceased. If, accordingly, you find that after discovering that the deceased did not heed the signals given the defendant, Frost was not able with the means at his command to stop the train in time to avoid the casualty, you will consider whether he ought not in the exercise of reasonable care to have given the signals earlier, and if he ought to have done so, and had he done so, he would have been able to make a timely stop, the defense of contributory negligence is not available to defendants, and your verdict should be returned accordingly.”
Instruction No. 7 was objected to by the defendants on the ground that it submitted to the jury “an alleged duty in the respect that the engineer or defendant should have discovered the peril of the position of deceased without regard to actual discovery, whereas the doctrine of last clear chance only begins upon the actual discovery of the perilous position of deceased. ’ ’ No. 8 was objected to for the same reason, and for the additional reason that “it ignores the doctrine of preponderance of the evidence and permits the jury to make findings from this source.” No. 10 was objected to “for the reason that it deals peculiarly with the question of primary negligence in not sounding and signaling, and in not sooner discovering the deceased, and also because it ignores the doctrine of contributory negligence, and also because it permits the jury to make their findings from any source. Also, because it would wipe out any possible defense under the doctrine of the last clear chance, by demanding an 'action of the engineer that would have been impossible confessedly under the instructions upon the conditions assumed.”
The court refused to give the following instruction offered-1 by the defendants: “No. 8. I instruct you that in considering whether engineer Frost acted with wanton and reckless negligence after discovering the peril of the deceased, in not avoiding ■ striking him, you must take the situation and condition then-existing, just as it was, not as you think it ought to have been.. In other words, in the matter of speed, you cannot say that engineer Frost wantonly and recklessly ran down the deceased' because you may be of opinion that if his train had been run at a different and lesser speed, whether within the ordinance requirements or otherwise, it would have been possible to have-avoided striking' him. This would be holding the defendant responsible for a previous act of negligence in the matter of'1 speed; but the essential feature of the doctrine of last elearchanee is that the conduct of the person whose action is the subject of inquiry must be tested by what he might have done under • the conditions, as to speed and otherwise, as they actually .then existed. So that your inquiry will be, with the speed of the' train as it was, could engineer Frost, after discovering the peril. of the deceased, and that deceased was unaware of his danger, and did not intend to withdraw to a place of safety, with such-appliances as he then had, in the condition in which they were, have stopped the -train in time to have avoided striking the de- • ceased, and was his failure to do so, if you find there was such?.
It is contended that Neary was not entitled to have an active lookout kept for his presence upon the tracks, because he is to be regarded as a bare licensee (citing Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831.) It is alleged in the complaint that the employees of the Chicago, Burlington & Quincy Railway Company used the tracks and switches of the Northern Pacific Railway Company in making up trains and in operating the same, by permission of, and agreement with, the defendant company, and that the company and its employees had full knowledge and notice of this fact. Defendants maintain that there is no proof of this allegation. To this we cannot agree. There is testimony in the record to show that for eight or more months prior to the death of Neary, Chicago, Burlington & Quincy trains had been running into the Billings yards of the Northern Pacific; that these trains would “go any place in the yards west of the depot”; Chicago, Burlington & Quincy trains and crews used the Northern Pacific tracks as far as Huntley, about twelve or fourteen miles east; they would use any of the yard tracks that happened to be open, always, however, using tracks to the right (north) of the main track, taking “as much room” as they needed to make up the trains; the yard switch crew would break up Chicago, Burlington & Quincy trains, and, in making up such trains, any track was used which happened to be clear; in running into the yards these crews were directed by the yardmaster where to go; train No. 6, through the operation of which Neary was killed, ran out of Billings east, as Chicago, Burlington & Quincy No. 42, on a regular schedule; Chicago, Burlington & Quincy conductors, including Neary, were furnished with a copy of that schedule or time card; Northern Pacific cars rah over the Chicago, Burlington & Quincy to Kansas City as a part of the Chicago, Burlington & Quincy trains; the Chicago, Burlington & Quincy train crews used the Northern Pacific book of rules while on the Northern Pacific tracks;
With regard to instruction No. 7 it may be said that it is almost a literal copy of the language used by this court in deciding the former appeal, and is, therefore, right or wrong, the law of the ease. But, it is argued, the court was merely announcing a general doctrine, and is not, therefore, foreclosed of the opportunity of now deciding that, in this particular case, the trial court was in error in supplementing the rule of the last clear chance, with the so-called “discovery doctrine.” It is contended that the question is still an open one in this jurisdiction, and that the logical rule, and the one sustained by the great weight of authority, is that the doctrine of the last clear chance of averting the accident, in a case like the one under consideration, should be limited to the possibility of so doing after actual discovery, as- distinguished from possibility of discovery. If in this statement the learned counsel for the appellants refer to the actual discovery of the presence of the person who is killed or injured, and that in a place where no duty rested upon the defendants to look out for him, the question must still remain an open one, because it is not presented by this record. Bach of the instructions criticised refers to the possibility of discovering, by the exercise of reasonable care, the peril of the deceased, not alone his presence upon the track. His presence was discovered when the engine was 900 feet way. Instruction No. 8, wherein the court applied the abstract principles laid down in
J. H. Manley, a witness to the accident, testified: “I should judge the train ran about 150 yards beyond where the man was struck. He was standing just about on to the right—over the south rail.”
C. C. Bever, a passenger on the train, testified that he felt no sudden jar in the stopping of the train.
There was testimony to show that a passenger train .going at the rate of twenty-five or thirty miles per hour could, with an emergency application of air, be stopped in from 250 to 300 feet, and going at the rate of six miles .per hour, it could be stopped in from two to fifteen feet. There was also testimony to show that the jar caused by an emergency stop would be felt by the passengers in the train.
Barrell, the fireman, testified: “Frost released the air after Neary had stepped to the outside of the rails. After hearing this whistle or after making this whistle, and then as he saw he didn’t get in the clear—he whistled a succession of short whistles and held his engine in the emergency.”
Gintz, one of the brakemen on Neary’s train, testified that he was in the caboose when No. 6 passed; when the engine passed, the whistle was sounded in an unusual way—like a roar going by. The caboose was about 600 feet west of where Neary was struck. There were nine cars in the passenger train. The body lay opposite one of the Pullman sleepers which was either the eighth or ninth car from the engine. The length of these cars
Defendants’ witnesses testified that Neary paid no attention to the approach of No. 6. He would take cheek of a car and then pass along to the next, walking between the rails of the main line in an irregular manner, apparently absorbed in his work. One of the car-repairers in the yard noticed the effect of the application of the emergency brake by Frost. The alarm whistle sounded by the engineer was heard and recognized as such by citizens a block or more from the railway yards. Frost also testified at the coroner’s inquest: “From the time I first saw the' man I would not dynamite the train the first time I saw him. You would think to whistle, giving alarm signals he would get off the track, and if you dynamite the train every time you saw anyone on the track or everything you saw on the road, you would be pretty slow on the trip.”
In view of all of this testimony, the jury might have been justified in finding that Frost used ordinary care to determine whether or not Neary was in peril, and that he employed every reasonable effort to stop after he discovered his perilous situation. He says he apparently heeded the signals by stepping off to the south, but did not go far enough to become “in the clear. ’ ’ As was said in the former opinion in this case, no duty rests upon an engineer to stop his train whenever he sees a person upon the track, regardless of the distance away at which such person may be. He has the right to presume in the first instance that such person will heed the usual warning signals and take a place of safety. But whether, in view of all the facts and circumstances disclosed by the evidence, Frost was justified in acting upon this presumption to the extent that he ’ did, was essentially a question of fact for the jury; and those instructions which imposed upon him the duty of using reasonable care to discover Neary’s peril were, we think, in the circumstances of this case, appropriate and proper. Frost saw the necessity of sounding alarm signals when he was 600 feet from
The supreme court of Colorado, in Nichols v. Chicago, B. & Q. R. Co., 44 Colo. 501, 515, 98 Pac. 808, 814 said: “Ordinarily, an engineer may presume that one approaching a public crossing over which a train is about to pass is aware of the approaching train, or will not place himself in a position of imminent peril; but he is not justified in relying upon this presumption if the circumstances are such that, as a reasonably prudent person, it should occur to him that the pedestrian is not aware that a train is approaching the crossing over which he is about to pass. An engineer guilty of negligence cannot blindly assume that a traveler approaching a crossing will not be. Ordinary care on the part of an engineer requires vigilance to guard against a dangerous situation reasonably to be apprehended as well as one actually imminent.”
The jury would have been justified, we think, in concluding that Neary’s absorption in his duties and his total failure to heed the approach of the train, with all danger signals sounding, was so apparent as to throw discredit upon the engineer’s story of his own situation and actions at the time, and to lead to the conclusion that he exercised no care at all until a moment when no effort on his part could avert the accident.
Again, it is urged that because the complaint alleges that the engineer saw Neary when the train entered the yards and was aware that he was unconscious of its approach and knew of the danger he was in “a long distance before reaching him,” a theory of the case was thus developed by the pleader which could not thereafter be departed from by claiming at the trial that, in the exercise of reasonable care, the perilous position of the deceased should have been discovered. Considering Frost’s testimony as to how the situation presented itself to him, and all the other facts and circumstances in the case, we think the variance, if any, between the allegations of the complaint and the
5. Regarding those instructions wherein the jury were told that they might take into consideration the fact that the tfain was running at a rate of speed in excess of that prescribed by the city ordinance. It is contended that this excess speed was prior or primary negligence on the part of the defendants, which was offset or nullified by Neary’s contributory negligence, and as the same speed was maintained up to the time of the collision, "it was not an element to be considered by the jury in arriving at a verdict. There is no question, under the testimony, that the usual signals of the approach of the train were given by whistle. Whether the bell was ringing may be a matter of doubt, but, if it had been, it would probably have added nothing to the vociferous whistle alarm. The primary negligence of the defendants must have been in the excessive rate of speed; otherwise the negligence of Neary would not have been contributory. That it was contributory is settled by the law of the case. Three times, in the former opinion, this court spoke of the excessive speed of the train. The last reference-is as follows: “We do wish to be understood, however, as holding that the defendants were guilty of gross negligence in running the train as they did, in violation of the ordinance; and that, taking into consideration this fact, together with the other facts admitted to be established by the evidence, it was not the province of the court to determine as a matter of law whether the defendants by the exercise of reasonable care could have stopped it and saved the deceased’s life. This phase of the case should have been submitted to the jury under proper instructions.” We do not see how the trial court, in the light of this language, could have refused to submit the matter for the jury’s consideration, upon proper request being made. The-direction- therein contained established the law of the case. But we are not content to rest our conclusion upon this consideration alone. It is impossible to disabuse one’s mind of the idea' that the excessive rate of speed at which the train was.
Counsel for appellants have called the case of Sullivan v. Missouri Pac. Ry. Co., 117 Mo. 214, 23 S. W. 149, to our attention on this point. In that ease the jury were instructed as follows: “And in this regard the court further instructs you that although you believe from the evidence that Ellen Sullivan was guilty of negligence in stepping upon the track, and although you may believe from the evidence that the servants, agents and employees of defendant in charge of said train, after seeing her on the track, and discovering the danger of her position, if it was dangerous, could not have avoided injuring her by the use of ordinary care; yet if you further find and believe from the evidence that their inability to avoid such injury after discovering her condition was caused by their running at an illegal rate of speed, and if they had then and there been running at a legal rate of speed they could have avoided injuring her, by the use of ordinary care, then such negligence of said Ellen Sullivan is no defense to this action.” The supreme court of Missouri said: “The first time the doctrine contained in this
At first impression the rule laid down in the foregoing opinion appears to be logical; but after mature consideration we have arrived at the conclusion that it is not founded upon correct, reasoning; and it is certainly not a humane rule. Several of the judges dissented vigorously from the conclusion reached in the Sullivan Case on the question we are considering. The contributory negligence of a plaintiff or deceased person which will operate to defeat a recovery must be such as directly contributes to the injury at the time it is inflicted; his negligence-must be a proximate cause of his injury. Running a train in a city in excess of the rate of speed fixed by ordinance is negligence per se; and if this lapse of duty directly contributes to an injury the person responsible therefor is liable in damages.. (Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243; Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499, 505.) How, then, can it be said that the excessive rate of speed after Neary’s peril was-discovered was but a continuance of that primary negligence which obtained before such discovery? It existed as an active-agency up to the very moment of collision, and may be said to-have been a new and different act of negligence. It contributed directly to his death. Indeed, had it not been for the fact’ that the ordinance was being violated, the death of Neary, viewing the attendant circumstances from Frost’s standpoint, could have been avoided, in all probability. If the excessive rate of' speed before discovery constitutes negligence per se, and circumstances intervene, to-wit, discovery of position or peril, which make it incumbent upon an engineer to use every reasonable-effort to avoid striking a man upon the track, and he is unable to stop solely on account of the excessive speed which was maintained, not only before, but after discovery, we are satisfied that the fact that the ordinance was being violated is per se evidence.
6. It is contended that the verdict is so large that, in view of the testimony, it evidences passion and prejudice in the minds of the jury and a new trial should have been granted for that reason. The verdict is very large. However, there is substantial evidence to warrant it. W. P. Matheson, a life insurance agent, testified that according to standard mortality tables, Neary’s. expectancy of life was about twenty-nine years, and that an annuity of $100 per year would have cost him about $1,800; that the insurance companies, or compilers of the annuity tables, base their calculations on the earning power of money at three per cent per annum. He also said: “I know of farm loan mortgages being made in this neighborhood at rates of' interest of seven to ten per cent, an average of eight per cent, without taxes to nonresidents. I have never known of any loss, around here on such security. The charge made for annuities is large enough to pay the proportionate share of running ex
The court instructed the jury that in considering the annuity tables, in determining the amount of damages to be awarded, they should take into consideration the maximum safe earning power of money in the- community. They may have determined this to be-three per cent. Under the evidence they were warranted in so doing. At this rate an annuity yielding $1,200 per annum would cost $21,600, or $3,400 less than the amount of the verdict. The testimony shows that Neary was an excellent husband and father, a man of some education, given to reading -and- study, and capable of instructing his children. He spent his evenings at home, was strong, healthy, industrious, and1 of a happy and agreeable disposition. We cannot say that $3,400, or twice that amount, would be an excessive allowance for loss of his society, companionship, care, and protection. In the nature of things, jurors must be left to judge such matters for themselves. We repeat that this verdict is very large—larger perhaps than any verdict which has ever been rendered in the courts of this state under similar circumstances; but in so far as it comprehends loss of that portion of earnings which would probably have been contributed to the support and maintenance of the plaintiffs, the great part of it is capable of being arrived at by mathematical calculation under the testimony. No argument is advanced in criticism of the instructions. This court in Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 242, 102 Pac. 310, 320, said: ‘‘The elements of passion and prejudice will not be presumed to have influenced the minds of jurors who return a verdict, based on competent testimony, in accordance with instructions, and easily to be arrived- at by mathematical calculation.” The fact that the jury selected1 as the basis of
7. Appellants objected to certain item® of costs and disbursements for mileage and per diem included in respondent’s memorandum of costs as filed in the district court and moved to retas the same. We will take the case of the witness Gintz as a sample of the items to which objections were filed. The memorandum' reads: “L. Gintz, from state line and return, first and second trials, 460 miles, $46.00.” The ground of objection is thus stated in the brief: “The chief point of our objection is that, as the statutes (sections 3182 and 7169, Revised Codes) contemplate that a witness shall be allowed the mileage necessarily traveled by the shortest traveled route in coming from the place of his residence to the place of trial, and returning from the place of trial to his residence, it is necessary, when such mileage is claimed, that the cost memorandum should advise the party against whom it is sought to charge the mileage, as to where the place of residence of the witness is, to the end that it may be determined therefrom whether that is in fact his residence, and whether the mileage claimed is actually the mileage by the shortest traveled route between the two places; and the memorandum should further state that this number of miles was necessarily traveled.” The eases of Cole v. Ducheneau, 13 Utah, 42, 44 Pac. 92, Garr v. Cranney, 25 Utah, 193, 70 Pac. 853, and Merriman v. Bowen, 35 Minn. 297, 28 N. W. 821, are cited to support the argument. To relieve the controversy of the question of indefiniteness as to dates of attendance of witnesses and mileage necessarily traveled, an amended memorandum was prepared, accompanied by a motion for leave to file the same. Service of the amended memorandum and of the motion for leave to file was made upon the appellants. The court refused to allow the amended memorandum to be filed and overruled the objections to the original memorandum. We think the motion for leave to file the amended memorandum should have been
It is contended by the appellants that for this court to now consider the amended memorandum would deprive them of a right to attack- the items of mileage by a countershowing after-they had been properly identified; while on -the part of the respondents it is contended tha-t if we should now sustain the-appellants’ objections to the original memorandum, their right of appeal from the order refusing to allow -the amendment is-lost to them, inasmuch -as they had a ruling in their favor as. to the sufficiency of the original memorandum, and could, therefore, not appeal. But we do not -attach importance to either-of these considerations in the circumstances. Our judgment is. that the district court abused its discretion in refusing leave to file the amended memorandum. Upon the motion for leave to> file being made, the court should have granted it despite objection. The appellants might then have met the same in any-manner that seemed advisable. We think it our duty to consider it as filed, and to overrule the objections to the items of costs and disbursements, for -that reason.
The judgment and order appealed from are affirmed.
Affirmed.