Alt v. Chicago & Northwestern Railway Co.

57 N.W. 1126, 5 S.D. 20, 1894 S.D. LEXIS 26

Opinions

Fuller, J.

The plaintiff and respondent herein brought an action against the defendant and appellant to recover $5,000 damages, which he claims to have sustained by reason of an injury caused by the alleged negligence of defendant’s servants in running an engine over one of plaintiff’s feet at a time when he was lawfully upon defendant’s right of way and engaged in unloading a car of coal. The defendant denies that the injury was caused in any manner by its negligence, and denies that plaintiff -was damaged in the sum of 5,000, or in any other sum whatever, and that the injury, if any, was caused by the negligence of plaintiff. There was a trial to a jury, and a verdict for defendant. From an order sustaining a motion to set aside the verdict and grant a new trial, "defendant appeals.

The substance of some of the grounds specified in plaintiff’s motion for a new trial is that the court erred in refusing to give certain instructions offered on behalf of plaintiff, and in giving certain instructions upon its own motion; and, further, that the verdict is not supported by the law and facts, in that the negligence of the defendant was the proximate cause of the injury to plaintiff, and that there is no evidence in the case showing that the plaintiff was guilty of any negligence whatever. The order of court from which this appeal was taken does not specify the grounds upon which the same is based, and it will therefore be necessary to examine the record sufficiently to as certain if there are any grounds which justify the action of the trial court, in the exercise of a judicial discretion, in setting aside the verdict and granting a new trial. It is urged by counsel for appellant that respondent’s counsel neither excepted to the refusal of the court to give the instructions offered on behalf of the plaintiff, nor to the giving of certain other instructions embraced in the court’s charge to the jury, and that such alleged errors on the part of the court are, therefore, unavailable and should not be considered on a motion for a new trial. At the conclusion of the court’s charge to the jury plaintiff’s counsel took the following exception: “Plaintiff excepts to all the charges, and to the special requests asked by defendant, for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions.” We are disposed to believe that counsel for plaintiff were not entitled to have any question regarding the instructions considered by the trial court, because the exceptions taken were too general to be available on appeal to this court, and we therefore entertain the presumption that the order complained of was not granted because 1he instructions were erroneous. Hayne New Trial and App. § 128; 2 Thomp. Trials, 2398; Elliott, App. Proc. 791; Smith v. Colman, (Wis.) 46 N. W. 664; Carroll v. Williston, (Minn.) Id. 352.

Plaintiff’s counsel specify, in the motion for a new trial, “that the verdict is contrary to the law and the facts, in that the negligence of the defendant was the proximate cause of the injury to the plaintiff, and that there is no evidence in the case that shows that the plaintiff was guilty of any negligence whatever. ” The above statement sufficiently designates the statutory ground to preserve plaintiff’s rights in that particular and entitle him to have the subject therein specified examined by the trial court on the motion for a new trial. Comp. Laws, § 5090; 2 Thomp. Trials, 2755; Elliott, App. Proc. 854.

Appellant urges that plaintiff failed to make out a case, and that there were no facts to be submitted to a jury, and that it was immaterial whether the court erred, iu its instruction, inasmuch as a verdict should have been directed for defendant on its motion, made at the time plaintiff rested his case, and renewed after both parties had concluded their evidence. We fully agree with the learned counsel upon that proposition, provided the premises are tenable, and v e realize that it presents a most difficult question, to-wit: Was the trial court, in the exercise of its best judgment and sound discretion, justified in concluding that different fair-minded men might reasonably arrive at different conclusions from a careful consideration of all the facts and circumstances in evidence at the time the case was submitted to the jury? The plaintiff testified in effect, that on the day the injury occurred he was assisting W. R. Shields in unloading a car of coal which was on the sidetrack at Henry; that the loaded wagon, to which no team was attached, stood parallel with the side of the car, and had upon it about $3,000 pounds of coal; that, while he was loading coal from the car into the wagon, a freight train came into the station, and the conductor told him that they would have to move the wagon, as they were going to do some switching; that the witness and , Mr. Shields attempted to move the wagon, but were unable to do so, and Mr. Shields then went for help, but, failing- in that particular, returned, and another ineffectual effort was made while the engine was backing down and within 8 or 10 feet of the car which was being unloaded and about 20 feet from the plaintiff, who had hold of the end of the wagon tongue and was trying to turn the tongue parallel with the track, so that the back of the wheel, which was inside the rail, would allow the engine to pass; that there was no obstructions between himself and the engineer, who was leaning out of the cab window, and who remarked, as he backed down to the car,.that he would take a wheel off that wagon all right enough, and almost instantly the step of the engine struck the wheel and threw the tongue of the wagon toward the engine with sufficient force to throw plaintiff upon his right knee, so that the wagon tongue caught his left leg and threw him under the engine, and one of the drivers passed over his foot and caused the injury of which he complains. The above testimony is fully corroborated by the witness, Shields, who further testified that the engineer stated, at the time time the wheel was struck, that ho expected that somebody would get hurt. The engineer testified, in effect, that he backed in on the side track, and that there were no obstructions to prevent him from seeing from the time he left the main track until he came to the car which was being unloaded; that when he backed up he could see that coal was being thrown from the car into the wagon, but did not see any one at the car or the wagon until he came within 15 or 20 feet of the car, when Mr. Alt, the plaintiff, put his head out of the car door and asked if the wagon would clear, and the witness answered that it would just clear, but if he continued to place his wagon so close to the track he would get a wheel taken off sometime; that plaintiff then got out of the car and went to the side of the wagon, and witness saw no more of him until after the step on the engine struck the wheel, when he saw plaintiff lying on the track under the engine; that he was looking out <_>f the window, and was satisfied that the steps would have cleared the wheel by three or four inches if it had not been moved; and he also testified that he did not say that he would take a wheel off the wagon, or words to that effect The fireman testified that he heard the engineer say that the wheel would clear.. The conductor testified that he did not tell Mr. Shields and the plaintiff to move the wagon, as he supposed they knew enough to do that themselves. He simply told them to get out of the way, as they were coming in after some cars. In this particular he is corroborated by two other witnesses. Defendant offered in evidence the-following exhibit, which was admitted without objection: “Henry, Dak., Station, Oct. 27, 1887. R. C. Richards, Esq., G. C. A., Chicago, Ill.- — Dear Sir: The following is a correct statement of how Mr. A. D. Alt was injured by the train, No. 38, Hinman conductor, on Oct. 20th, 1887: Mr. Alt was assisting Mr. Shields to unload a car of coal into wagons when the train came in. Condr. Hinman told the men vho were unloading the car of coal to get out of the way, as engine was going in after some cars. Hinman then came into the office. Engine backed in, coupled onto car coal, and, as engine was slowly backing up, they could see the engine would not clear the wagon. So Mr. Alt. took hold of the end of the tongue to cramp the wagon. The step of the engine struck the hub of the wagon, and end of tongue struck Mr. Alt’s legs, throwing him onto his right knee and his foot under the driver, crushing the end of his foot badly. His big toe has been amputated, and at present he is doing well. W. R. Shields was the only eye witness to this accident. At my request Mr. Alt signed this report as being a correct statement of the accident. Respectfully, J. A. Parrott, Agent. [Signed] A. D. Alt.”

While it appears to us that the verdict is sustained by a preponderance of the evidence, and that a direction of a verdict in favor of the defendant at the close of the plaintiff’s testimony would not have been disturbed on appeal, yet the fact remains that we cannot place ourselves in the position of the judge before whom the case was tried and observe the incidents of the trial, including the demeanor of the witnesses on the stand. It requires a court as well as a jury to try causes of this nature, and, while the jury is the judge of the facts viewed in the light of the law, as a rule no verdict should stand when, in the sound judgment of the trial court, it operates as a wrong between the parties which might be remedied upon a retrial. As remarked by Mr. Justice Kellam in Hodges v. Bierlein, (S. D.) 56 N. W. 811: “An application for a new trial upon the ground of the imufficiency of the evidence to support the verdict is addressed to the sound discretion of the trial judge, and his discretion will only be reviewed by this court in case of manifest abuse of that discretion. The rule is too well established to need supporting authorities. * * * It may be said that this is the general, if not the universal, rule a,nd it may be supplemented with the suggestion that a stronger case must be made to justify the interposition of an appellate court when a new trial has been granted than when it has been refused.” A charge of negligence tenders a question of fact, and we cannot, under the circumstances, say that the proof in this case is so certain and uncontrovertible that the judge ■ should have decided it, as a question of law, by directing a verdict for the defendant, and that, by declining so to do, and by granting a new trial, he abused his judicial discretion. The order from which the appeal is taken is therefore affirmed.