102 P. 310 | Mont. | 1909
Lead Opinion
delivered the opinion of the court.
These are appeals from a judgment entered on the verdict of a jury, and from an order denying a new trial, in a case in which Mary Alice Yergy, as executrix, the plaintiff, was awarded damages in the sum of $40,000 on account of the alleged negligence of the defendants, the Helena Light and Railway Company and Stephen Peterson, its motorman, resulting in the death of plaintiff’s husband, George .0. Yergy, a lumber dealer in the city of Helena. The death occurred on December 1, 1906, and resulted from a collision between one of the defendant company’s street railway cars propelled by electricity, which was being operated by Peterson, and a buggy drawn by a single horse, in which buggy the deceased, Yergy, was attempting to cross the railway tracks at the intersection of Lyndale and Benton avenues. The com
The first complaint made by the appellants is this: That the court erred in allowing plaintiff’s witness, Samuel M. Boss, to testify as to the distances within which a street-car could be stopped, under certain circumstances, when going at different rates of speed. The witness had testified that he was inspector of railways for the State Bailway Commission, and had had eight years’ experience in the railroad business; that he had acted as
In order to properly illustrate the other propositions of law involved, it seems necessary to set forth a portion of the testimony. John Edgerton, a witness for the plaintiff, testified that he was in a cab on Lyndale avenue, which is a street of average travel, on the evening in question; that at some distance east of the intersection of Lyndale and Benton avenues the cab passed a buggy, in which the deceased Yergy was riding. The cab was going at the rate of from six to seven miles an hour. As the cab passed the buggy, the horse attached to the buggy began to trot. There was an arc light at the intersection of the two avenues, and the street-ear could be seen approaching for many hundred feet south of the intersection of the two streets. The cab had reached a point approximately one hundred feet west of the railroad track, when the witness looked out to see if the approaching car would stop at Lyndale avenue. At that time the car was running at the rate of about twenty-two miles an hour. Witness first saw the car approaching when it was at a point about four hundred feet south of the intersection of the two streets. He heard the gong of the street-car sounding. When the car was at a point from fifty to one hundred feet
Nathan Godfrey, an insurance agent, testified that his company would charge for an annuity of $5,000 per annum, for a man forty-nine years of age, for the balance of his life, the sum of $71,800.
Ben. Hay, the cab driver, testified that, when the car stopped, the front wheel of the forward truck was off the track; that Mr. Yergy did not look around when the cab passed his buggy, and paid no attention at all to the cab as it passed.
Amos Shelladay, a witness for the plaintiff, testified that he was a former employee of the defendant company; that he knew the car in question; that for a couple of hundred feet south of the intersection of Lyndale and Benton avenues the street car track was practically level; that under the conditions existing on the night in question the car could have been stopped in the space of twenty feet, going at the rate of eight miles an hour; that at the rate of twelve miles an hour it ought to be stopped in practically the same distance, and, going at the rate of eighteen or twenty miles an hour, the car could be stopped in fifty feet. J. W. Ludwick substantially corroborated Shelladay.
J. B. Sanford testified that he had known deceased for twenty years; that he was in the planing-mill and lumber-yard business, and witness at one time conducted a similar business for a •period of thirty-five years; that he had a great deal of business
Thomas E. Goodwin, an expert accountant, testified that he had examined the books of Mr. Yergy, and that these books disclosed the fact that for several years prior to his death the profits of Mr. Yergy’s business averaged about $8,700 per annum. This testimony was not objected to at the time it was given. At the close of plaintiff’s case the defendants interposed a motion for a nonsuit, for two reasons: (1) That no evidence had been introduced to support the allegations of the complaint that the acts of the defendants were willful; and (2) that “the evidence shows only the happening of the accident and its results, and does not show the circumstances immediately accompanying it, so that the only inference which can be drawn from the facts testified to is that the deceased got upon the track of the defendant company, in full view of the rapidly moving ear, which said car was lighted, so that it could be readily seen, and with the gong ringing so that it could be readily heard; and the evidence fails to show that the deceased was at that time in the exercise of ordinary care, and also fails to show that the accident' was proximately caused by the negligence of the defendant. ’ ’ This motion was denied, whereupon the defendant moved to strike from the record the testimony of Mr. Goodwin as to the showing made by the books of the Yergy estate, “for the reason that the same is incompetent and immaterial, and that earnings of business are speculative in character, and do not form the proper measure of damages.” The court overruled the motion, and the defendants saved an .exception.
Ruth Bower, a girl of fifteen years of age, testified that she was at the crossing when Mr. Yergy passed. She said: “The car was coming pretty fast down the hill, and the gong was sounding, and I was waiting for the buggy to cross, and while I was standing there I heard the crash, and I turned around- and saw the smash-up. The man was driving at a slow trot. He was just sitting still in the buggy. He did not see me; he was looking straight ahead. I made an outcry. I said, ‘Look out! you will get hurt,’ and he did not pay any attention to that. Mr. Yergy did not seem to hear me when I called to him. I did not think he heard me at all.”
Walter Card testified that he was a passenger on the car in question; that his attention was attracted by the sounding of the gong; that he looked out, and saw the man in the buggy, who was apparently either absorbed in thought or sleeping. The witness continued: “He was sitting in a kind of a crouched position, looking down in the street ahead, neither to the right nor to the left. The gong had been sounding up until then. Until the car was right on to him you might say he didn’t appear to know who was in the way. He then attempted to gather up his lines, and to either get across the track or whip up the horse, but was hit before he could do so. The ear was going at the ordinary rate of speed. When I saw the buggy, I saw the motorman put on his brakes, trying to stop the ear. I could not say what effect it had on the ear, as to stopping it. • As soon as the extra loud sounding of the gong commenced, I looked out and saw the horse. The horse was then just off the crossing, and the buggy was still on the crossway. The horse extended the length of the horse into Benton avenue. I did not think there was any reason to apprehend danger when I saw this man
Frank J. Wise testified that he saw Mr. Yergy on the evening in question, just before the accident happened; that he was driving in a kind of a dogtrot. “He was sitting in the buggy kind of stooped down; he had a cloth coat and a fur collar. He did not notice us at all apparently; passed very close to us. I saw the car coming. I could see the light. The car was moving rapidly, just as it generally was. The gong was sounding, and the accident happened just at the same time. Mr. Yergy never looked up. I heard the gong sound, and my attention was called to him when that man came to a stop, and then it all happened in just a twinkling of an eye, in less time than it takes me to tell it. That is the only time I heard the gong sound. The motorman sounded the gong immediately before he hit the man. It was all in the twinkling of an eye, like a flash of lightning. The car did not seem to stop right at once; it went quite a little distance. It went on past the corner. It was not very light there. There was a dim light there. There was an electric light. It was just about light enough to see the wheels of the car, but you could not see whether they were revolving.”
Mrs. Frank J. Wise testified that she was with her husband. “Mr. Yergy was near the track when I heard the gong, driving along. He was dressed in an overcoat, and he had the collar up, and was kind of looking down. When he passed us, he was sitting in the buggy in the same position. He paid no attention to us at all; didn’t seem to notice us. I did not see him paying any attention to the sounding of the gong. It only took a few seconds to enact the whole thing. When I heard the gong sound, the car was about two or three hundred feet south of Lyndale avenue; that was what drew my attention to the car—the gong.
Paul Bickel testified: “I was on the front part of the car. I saw the buggy before the car struck it. I should say the car, when I first noticed it, was about ninety feet from the crossing —maybe not that far—and at that time the' buggy was just across the sidewalk. The motorman’s bell was ringing at that time, and I heard it distinctly. He was applying the brakes all the time; at the same time he was ringing the bell. I should think that the motorman reversed the current; the jar would indicate that he did. The horse had just got by, and it hit the buggy, and it crushed right under the car, and the man went with it. I should say that the ear was running about eight or or nine miles an hour. I should think the car was about ninety feet from the crossing of Lyndale and Benton avenues when I heard the gong ring, and that was the time when I saw the buggy. It was brightly lighted around there so that I could see. There was no obstruction there. As far as I can remember, the horse was just across the middle of the street, trotting along about five miles an hour, about half as fast as the car was going.”
As we understand the complaint (and this understanding is based partially upon statements in the briefs of counsel for the respondent), the theory of the pleader was that the proximate cause of the death of Mr. Yergy was the negligence of the defendants after the collision took place. We think this is the only ground of negligence stated in the complaint. Error is assigned
We shall assume, for the purposes of this decision, that Mr. Yergy was negligent in placing himself in a situation of peril. It is not a violent inference that he was asleep in his buggy up to a moment just prior to the collision. The testimony of the motorman, however, is to the effect that he saw deceased, and appreciated his peril, when the ear was forty feet south of Lyndale avenue. He then sounded the gong. Edgerton testified
The court instructed the jury, without objection, as follows: “ (6) The jury are instructed that it is the duty of the motorman running a street-car to keep a constant lookout for persons approaching the track; and, on the approach of a person or vehicle near the track with the apparent purpose of crossing, to use every means in his power, consistent with the safety of his passengers, to stop the car and avoid a collision; and, if the jury believe from the evidence in this case that the injury and death of George 0. Yergy were caused by the failure of the motorman to keep such constant loookout, or to use the means within his power to stop the car and avoid the collision, the. defendants are liable for the injury and death of the said George 0. Yergy.
“(7) The court instructs the jury that it is the duty of a street railway company to so regulate the movement of its cars at the intersection of streets as not to unnecessarily expose drivers of vehicles to the dangers of collision. It is consequently the duty of the street-car company to have its car under control, and to operate the same with reasonable care at street intersections ; and, if it fails in the duty, then it is liable for such damages as may happen to a person injured because of such failure.
“ (8) You are further instructed that, if a person be seen approaching the tracks of the defendant electric street railway, who is apparently capable of taking care of himself, the motorman may assume that such person will not attempt to cross the
“(9) The court further instructs the jury that the duty of a street railway company, and its motorman in charge of a car, to control the same at street intersections, in order to avoid collision, does not arise solely when a person is on the track, but also obtains if his danger was apparent while he was approaching the track.”
The following instruction was also given: “(11) If the jury believe from the evidence that the deceased, George 0. Yergy, got upon the track of the street-ear, or was in the act of approaching the track in such a way as to indicate to the motorman, or apprise the motorman in charge of the ear, that he was in the act of getting upon the track, far enough ahead of the ear that the motorman, in the exercise of ordinary care, could have seen that fact in time, and either by stopping the car or arresting its motion, and thus avoided injuring Yergy, and you believe from the evidence that the motorman failed to do this, then the law is for the plaintiff, although you may believe that Yergy himself was negligent.” The record discloses no objection to this instruction, but does show that the defendants excepted to the same “upon the ground that there was no evidence in the case to support the instruction based upon the divisibility of the accident.” This exception, even though we could consider it in the absence of a prior objection, was not well taken, for the reason, as we have heretofore pointed out, that there was testimony in the record to warrant it, provided the complaint was so framed as to cover that ground of negligence. The latter question, however, was not raised by the exception. It is apparent, therefore, that the cause was tried on the theory,— in which defendants participated,—that negligence could prop
But it is contended by the appellants, quoting from the opinion of the court in Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A., n. s., 301, that “the negligence to liability consists in a' failure to perform the duty declared, and not in the ultimate effect produced.” Assuming this to be a correct statement of the law, the jury in this case, in the’light of Peterson’s testimony, and the fact that the car ran more than eighty-seven feet after the collision, may have believed that he made no reasonable effort to stop, after (as he said) “I saw that he was in a point of danger, and did not pay any attention to things.”
Defendants requested the court to charge the jury as follows: “(1) You are instructed that the basis of this action is negligence. Negligence may be defined to be the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do under the circumstances of a given case. Before you can find for the plaintiff, therefore, you must find the defendants to have been guilty of negligence as alleged in the complaint; and, if the deceased was himself guilty of negligence which proximately contributed to the injury complained of, he cannot recover.” The court modified this instruction by adding thereto, “except under the condition and the law as defined to you hereinafter.” The record discloses no objection to the modified instruction, but does show that the defendants excepted thereto, for” the reason that the instruction as given “destroyed the right of the defendants to a verdict in the event that the negligence of the deceased was the proximate cause of the injury.” But we shall consider this instruction in connection with others which involve the same question of law.
Defendants also requested this instruction: “(9) You are hereby instructed that, if you find from the evidence that the
The defendants also requested this instruction: “ (12) You are instructed that it was the duty of the deceased, George 0. Yergy, before going on or across the track of the defendant company, to look and listen for approaching ears of said defendant company; and if you find from the evidence that the deceased, George 0. Yergy, failed so to do, and that by looking and listening he could have seen or heard the approaching car of the defendant company in time to have averted the injury to himself, then you must find your verdict for the defendant, unless you further find from the evidence that the employees of the defendant, engaged in the operation of its car, after they saw, or by the exercise of ordinary care could have seen, that deceased was in a position of peril, failed to use such care and caution in stopping said car to avoid injury to said deceased, George 0. Yergy, as a person of ordinary care and prudence would have exercised' under like and similar circumstances.” This instruction the court refused to give, and defendants excepted, upon the ground that the refusal did away with the defense of contributory negligence. The court, however, did charge the jury that if the injury to Yergy could have been avoided by the exercise of ordinary care, after he was discov
The following instruction was also requested: “(14) If you believe from the evidence that said George 0. Yergy drove upon said railway track after he saw, or by the use of ordinary care and watchfulness could have seen for a distance of at least five hundred feet, the said ear of the Helena Light and Railway Company approaching the crossing at ordinary speed, when by stopping his horse before going upon the tracks a collision could have been avoided, your verdict should be for the defendants.”
Eequested instruction No. 17 reads as follows: “Even if you believe from the evidence that the defendants were negligent in the management of the said car at the time and place alleged, and that the said George 0. Yergy was in no respect negligent, unless you find that the defendant then and there managed said car in both a willful and recklessly,negligent manner, your verdict should be for the defendants.” This instruction was properly refused, for the reasons heretofore stated in relation to the same subject matter, and for the further reason that there was evidence in the case sufficient to warrant a verdict for the plaintiff, aside from any question of willful or reckless conduct on the part of the defendants.
The defendants also requested the following instruction: “ (19) You are instructed that, if you find from the evidence that the deceased and the defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of, then your verdict should be for the defendants.” This was properly refused, for the reasons applicable to request No. 14.
Instruction No. 12, which the court gave, reads as follows: “The court instructs the jury that street-cars propelled by electricity cannot be lawfully run at a rate of speed which is incompatible with the lawful and customary use of the street by others with reasonable safety. Nor can such cars be lawfully run at a rate of speed in excess of that allowed by ordinance. So in this case, if you find from the evidence that there is an ordinance of the city of Helena prohibiting electric ears, at the place where deceased George 0. Yergy came to his death, to run at a greater speed than twelve miles per hour, and that at the time and place of such death of said Yergy the defendant’s car was running at a greater speed than such twelve miles
We find in the reply brief of the appellants some criticism of other instructions, but do not discover in the record any objection to these instructions, or any exception to the action of the court in giving them. If, as is suggested in the reply brief of appellants, there be any error in those instructions of the court, which engrafted the so-called “discovery doctrine” upon the doctrine of last clear chance, it may be said that the same proposition was incorporated in one of the instructions requested by appellants themselves, and the instructions given were not objected to.
The following instructions, relating to the measure of damages, were given to the jury: “(19) The jury are instructed that, if your verdict shall be for the plaintiff, such damages may be given by you to the plaintiff as under all the circumstances of the ease may be just, not exceeding the amount prayed for in the complaint. And in determining the amount of such damages you have the right to take into consideration the pecuniary loss, if any, suffered by the plaintiff in the death of said George 0. Yergy, by being deprived of his support.
“ (20) You are instructed that the measure of damages in this action is the present value of such a sum as you believe the deceased would probably have earned in his business during his natural lifetime, and left as his estate at the time of his death, considering his age, ability, disposition to work, habits of living, and expenditures, the capital he had at his command, and the risks incident to his business.”
Respondent’s counsel state in their brief that instruction 20 was given at appellants’ request; but, as the record does not show this, we may not act upon the information. It is now contended that the court erred in allowing the witnesses Sanford and Goodwin “to testify to the earning capacity of the deceased.” And it is said: “The jury were to find as the measure of damages the amount which the deceased would probably
But the plaintiff alleges that she is the sole dependent heir of the deceased. His estate inventoried $70,000, and there is an intimation in the record that its real value exceeded that sum. The size of this verdict is so great as to somewhat shock the mind, unless the amount be justified by the circumstances of the case. This court, and the district court, has the power to require that the plaintiff either remit a part of the amount awarded, by the jury, or submit to a new trial, in cases where the damages are clearly excessive. (Chicago T. & T. Co. v. O’Marr, 25 Mont. 242, 64 Pac. 506; Storm v. City of Butte, 35 Mont. 385, 89 Pac. 726; Western Union Telegraph Co. v. Bodkin (Kan.), 101 Pac. 652.) The law is that such damages may be given as under all the circumstances of the case may be just. (Revised Codes, sec. 6486.) In this •particular case we have felt justified, in view of the circumstances and the fact that the information we seek is contained in public records made by the plaintiff herself, and easily accessible, in pursuing an extrajudi
The cause is remanded to the district court, with directions to grant a new trial, unless, within thirty days after the filing of the remittitur with the clerk of that court, the respondent shall file her consent in writing that the judgment may be modified by deducting from the amount thereof, as of the date of its rendition, the sum of $25,000, leaving the amount of said judgment the sum of $15,000. If such consent is given, then the judgment shall be modified accordingly, and in that event the judgment, as modified, and the order denying a new trial, will stand affirmed, the respondent to recover costs of appeal.
Concurrence Opinion
I concur in the result reached in the foregoing opinion, and also in the propositions of law laid down, but I do not think that it is ever necessary or permissible to make an extrajudicial investigation in order to reach the proper result in any ease.