108 P. 240 | Ariz. | 1910
This is an appeal from a judgment for $3,250 rendered upon a verdict of a jury for that amount in a suit brought in the district court of Pima county by the appellee herein against the appellant. On June 14, 1905, Katherine Hogan was a passenger in a car that was part of a train on a railroad of the defendant company, en route from Tucson, Arizona, to Kansas City, Missouri. While a passenger on that train, the car in which Miss Hogan was riding was (with some others of the train) derailed at a switch about thirty-five miles east of Tucson. The plaintiff was bruised on the left hip, and otherwise injured. She brought an action for damages because of these injuries against the appellant company in May, 1906. The action was tried to a jury, and a verdict for $3,000 was set aside by the judge of the trial court, and a new trial granted. The case was again tried to a jury on the eighth day of June, 1908, and a verdict returned against the company for $3,250, on which judgment was rendered, and a motion by the defendant for a new trial was denied. Prom this judgment and the denial of the motion for a new trial, the defendant has prosecuted this appeal.
The defendant filed a general demurrer to the complaint of the plaintiff, and, while the record does not clearly disclose whether this demurrer was urged by the defendant, the same legal question is presented under objection by defendant to testimony being admitted under the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. It is urged by the appellant that the complaint does not state a cause of action, and is therefore insufficient to authorize the introduction of testimony because of its failure to charge negligence on the part of the company. The only part of the complaint that alleges or tends to allege negligence-reads as follows: “That while plaintiff was such a passenger on the said train, in the said car on the day aforesaid, at a point in said Arizona, . . . the said car of the said train in which plaintiff was then seated was thrown from the track, and thrown onto its side, and dragged along on its side a great distance; that by reason of said throwing of said car, and the dragging along on the ground as aforesaid, plaintiff was thrown about said car, and against the sides thereof, and was greatly bruised and injured.” As a common carrier
Under this general rule, it would appear that, if the allegations in the complaint in this case are equivalent to an allegation of derailment or wreck, they would be sufficient to raise the presumption of negligence, which, with the other allegations in the complaint, would be sufficient to constitute a cause of action. In line with these authorities, the United States supreme court in the case of Stokes v. Saltonstall, supra, held with reference to a stage-coach, a common carrier of passengers at that time, that the fact that the coach was upset was prima facie evidence of negligence and carelessness. This case was afterward approved and followed by the same court in Railroad v. Pollard, supra, and the court there applied the same rule to a railroad train. The above rule is predicated upon the theory that ‘ ‘ when a railway car is thrown from the track, and a passenger is thereby injured, the presumption is that the accident resulted either from the fact that the track was out of order, or the train badly managed, or both combined, and the burden is on the company to show that it was not negligent in any respect.” The complaint in the case at bar has charged facts that raise a presumption of negligence, which would suffice to put the defendant upon answer and proof, and are therefore sufficient to bring it within the fore
The appellant urges that “the court erred in refusing to set aside the verdict of the jury, for the reason that the said verdict was contrary to the evidence and not sustained thereby, for the reason that there was no proof of negligence on the part of the defendant, and the presumption of negligence was rebutted by the defendant.” The record discloses no proof of negligence by the plaintiff other than the proof of the derailment and wreck. The testimony of several witnesses was introduced by the defendant to establish the good condition of the track, and the careful handling of the train, but whether the testimony of these witnesses was sufficient to rebut the presumption of negligence arising from the facts proven was a question of fact for the jury, and would depend upon the weight given by the jury to the testimony of the witnesses, the effect, as considered by the jury, of facts and circumstances surrounding or attending the derailment of the train, and on this issue the jury has found against the appellant.
It is next argued that the court erred in refusing to instruct the jury, at the request of the defendant, as follows: “You are instructed that negligence is the gist of the plaintiff’s action in this case, and that the plaintiff has a burden on her part of proving negligence by the preponderance of the evidence. ’ ’ The refusal to so instruct the jury in this case would be reversible error if the same, or an equivalent, instruction had not been elsewhere given, but the court elsewhere charged the jury: “The jury is instructed, as a matter of law, that the defendant is not required to show want of negligence by a preponderance of evidence. . . . The plaintiff must establish her ease by a preponderance of the evidence, and, unless the plaintiff has shown by a preponderance of the evidence that she was injured by the negligence of the defendant, then your verdict should be for the defendant.” It is not prejudicial error to refuse a requested instruction when the court has elsewhere correctly given substantially the declaration of the law thus requested. Title Guaranty & Surety Co. v. Nichols, 12 Ariz. 405, 100 Pac. 825.
It is next urged that the court erred in adding to its instruction on the preponderance of evidence the -following: “In considering the last sentence, that the plaintiff must estab
The instructions in the ease, taken as a whole, appear to present the law correctly to the jury, and to have been as favorable to the defendant as it could require. This is apparent from the last assignment of error, wherein it is urged that “the court erred in refusing to set aside the verdict and to grant the defendant a new trial for the reason that said verdict was contrary to the instructions of the court. ’ ’ This position could only be maintained by conceding the construction placed by the appellant upon the evidence in the case. The court properly instructed the jury relative to the manner of considering the evidence, but it could not instruct the jury in regard to the weight they should give any part of the evidence offered by the witnesses for either the plaintiff or the defendant, and it was because of the difference between the jurors and the defendant in regard to the weight of certain testimony or the legitimate effect of certain facts or circumstances established by undisputed testimony that a verdict was found by the jury that was unsatisfactory to the appellant. The jury returned a verdict that they had evidently agreed upon because they either failed to credit entirely the oral testimony of the witness or declined to believe the effect of the facts established by such testimony to be such as witnesses or • appellant claimed. This was their prpvinee, and, while the court may differ with the jury as to the relative weight or effect of conflicting evidence, it will never set aside a verdict
There appears in the record no reversible error, and the judgment of the lower court is affirmed.
KENT, C. J., and LEWIS and DOE, JJ., concur.