92 N.W. 487 | N.D. | 1903
This is an action to recover damages for injuries to plaintiff’s person and property alleged to have been caused by defendant’s negligence. The jury returned a verdict in favor of plaintiff in the sum of $600. The defendant made a motion for new trial, based upon alleged -errors of law occurring at the trial, and upon the alleged insufficiency of the evidence to sustain the verdict. Defendant has appealed from the order overruling the motion.
Plaintiff, in stating his cause of action, alleges that for a number of years the defendant has been engaged in handling farm and other machinery in the city of Fargo, and that its place of business is on the south side of Northern Pacific avenue, in said city; that on the x6th day of July, 1901, the defendant had a threshing machnie and engine in operation at its said place of business near said avenue; that it operated the sáme in a careless and negligent manner, making a great and unnecessary noise in letting off steam; and blowing the whistle of the engine in such a manner as was calculated to frighten horses of ordinary gentleness; that the street was partially torn up at a point opposite defendant’s place of business, so that it was necessary for teams to pass close to the threshing machine and engine; “that on said date, and while said' defendant was running and operating said threshing machine and engine in a careless and negligent manner, as aforesaid, plaintiff, without any knowledge on his part of what defendant was doing, drove along said Northern Pacific avenue with two horses properly harnessed to a wagon, said horses both being of ordinary gentleness and road-worthiness ; that as plaintiff, in driving as aforesaid, reached a point on said avenue directly opposite defendant’s said engine and threshing machine, the defendant negligently and carelessly caused the whistle to be blown with a loud and unnecessary noise, causing plaintiff’s horses to become frightened and unmanageable, and plaintiff was thereby violently thrown from the wagon, and in their fright said horses were badly injured and the wagon broken; that, by reason of being thrown from the wagon as aforesaid, plaintiff was badly injured, and caused to suffer great pain and anguish, and was made sick, sore and lame, and permanently injured in his body, head, hands, legs, and nervous system, and was thereby rendered unable to attend to his business for a period of over two months, and was put to great expense for medical attendance and nurse
With the exceptions to be hereafter noted, it is not claimed, on this appeal that the facts thus alleged are not sustained by the evidence. For the purposes of this appeal, they may therefore be taken as true, except in those particulars which we will hereafter consider. It is contended in the first place that “there is no evidence tending to connect the defendant with the blowing of the whistle.” Defendant moved for a directed verdict on this ground, and the same was overruled. This is assigned as error. In our opinion, error was not committed in this ruling. The fact, is not controverted that it was the whistling of defendant’s engine which frightened plaintiff’s team, and caused the injuries to his person and property for which he sues. It is also an undisputed fact in the case that the engine was steamed up on the day in question under the direction of the defendant. I. J. Haug, the defendant’s managing agent at Fargo, testified that there was an excursion on that day to the Agricultural College; that his company had the engine fired up, and were operating it about 16 feet from the sidewalk. He also testified that a number of other dealers in threshing machines had rigs steamed up and running in front of their places of business for exhibition purposes. He says: “I think these excursions had been coming to Fargo for some time before that, and there had been a fire festival, and all these different companies had their engines steamed up at the time of the fire festival; and during the fire festival we all tried to whistle the most we could, because the one that whistled the most drew the crowd, and we had our machine on inspection, and, as our machine is new in North Dakota, we wanted to draw attention to it. On the day of the accident I do not know who blew the whistle. A man named P.eter Sandstrom was our engineer that day. I did not pay any attention to the whistle. The first I knew of the accident was when I was called out there, and the chief of police told me they were blowing the whistle, and for me to stop them.” Anfin Monson, a witness for plaintiff, testified that he saw the plaintiff’s team run away, and heard the whistle blow, “and heard it blow at different times before that.” Swan Johnson, a policeman, a witness for plaintiff, testified that he did not see plaintiff at the time of the runaway, but did see him after the injury. He says: “I do not remember how long the defendant operated this engine that day, but they were around there working at different times. The whistle blew off and on.” R. M. Pollock, a witness for plaintiff, testified that he was driving, on Northern Pa - cific avenue, and almost opposite the engine in question, when the runaway occurred. He says: “A very sharp, shrill whistle was blown from a threshing engine that stood there, and plaintiff’s team sprang forward. The whistle blew again, twice of three times. The whistle came from a threshing machine that stood on the south
It is next urged as grounds for new trial that the court erred in admitting evidence over defendant’s objection as to the extent of the injury to plaintiff’s wagon and to his team, and as to the doctor’s bill, and in refusing to strike such evidence from the record. Eight of the assignments of error relate to these rulings. In our opinion, no error was committed in the rulings'complained of. Counsel’s ob
It is also urged that the testimony is insufficient to sustain these items of damage. The reason urged by appellant’s counsel in their brief is “that there is no sufficient proof as to what such damages were, for the reason that the proof does not show that the amounts testified to were reasonable, or that the repairs were necessary, or that the doctor’s bills were reasonably worth the amount charged or testified to, and that there is no proof that said bills were paid.” The question as to the sufficiency of the evidence to sustain these three items was not presented to the trial court, and is not involved in the errors assigned in this court. The plaintiff testified to the amount of his doctor’s bill, the amount of the bill for repairing his wagon, and the amount of the injuries to his team. No objection to the evidence was made upon the ground now attempted to be urged. It is true, a motion was made to strike the evidence from the records. This motion was properly overruled. The evidence was competent. No request was made to the court to instruct the jury to disregard these separate items. The rule laid down by this court in Kolka v. Jones, 6 N. D. 461, 71 N. W. Rep. 558, 66 Am. St. Rep. 615, is that: “Where evidence is competent so far as it goes, but is not sufficient to establish a case or a right to certain damages, it is not error to refuse to strike out such evidence. The party should ask for a directed verdict, or move the court to charge the jury that the plaintiff has failed to make out a case, or to establish a right to recover the particular damages, as the case may be.”
It is also contended that the trial judge expressed a belief, in certain instructions to the jury, which were excepted to, that the defendant caused the whistle to be blown. We have examined the instructions referred to, and find no foundation in their language for any such criticism.
This covers all the assignments which have been argued. No reasons or authorities having been presented in support of the remaining assignments, they are, therefore, under rule 15 of the revised rules of this court (74 N. W. Rep. x), deemed to be abandoned.
Finding no error in the record, the order appealed from will be affirmed, and it is so ordered.