Bunting v. Central Pacific Railroad

16 Nev. 277

• Court: Nevada Supreme Court
• Decided: October 15, 1881
• Docket: No. 1,041
• Status: Published

Opinions

By the Court,

Hawley, J.:

This is the second appeal taken in these cases. The first was an appeal by plaintiffs from a judgment of nonsuit (14 .) The second is taken by defendant from a judgment in favor of plaintiffs and from an order of the district court refusing to grant a new trial. It was correctly assumed in the argument, by appellant’s counsel, that the law of these cases is settled by the previous decision, and that of Cohen v. The Eureka and Palisade Railroad Company, 14 Nev. 370. It was also properly admitted that “the testimony offered on behalf of the plaintiffs upon the second trial was substantially identical with that offered upon the first.”

Appellant, upon this appeal, admits' that in the light of the former decision, the plaintiffs’ testimony made out a prima facie case against the defendant; but it is claimed that, upon the whole cash, the evidence is so overwhelmingly in favor of the defendant that the verdict in favor of plaintiffs ought to be set aside. The rule, so often declared by this and other courts, that an appellate court will not set aside a verdict upon the ground of the insufficiency of the evidence, or review the weight of testimony where there is a substantial conflict of evidence, was recognized throughout the entire argument. In this connection it was with great energy, and an ingenious selection of portions of the testimony of several witnesses, sought to be shown that the testimony submitted on the part of the plaintiffs was so slight, negative, and indefinite, and the testimony on behalf of the defendant so strong, positive, and clear, that it ought not to be said that there is any conflict in the evidence.

In view of this argument we have carefully read and considered all of the testimony submitted by the respective parties, and our conclusion is that upon all the material questions there is a substantial conflict in the evidence, In determining the question whether the bell was rung or the whistle blown we agree with the appellant, that a mere “ I did not hear it” is entitled to but little, if any, weight in the presence of affirmative evidence that these signals were given. But that is not, in our opinion, a fair statement of the facts of this case. The evidence amounts to more than amere “I did not hear it.” Several of the witnesses upon the part of the plaintiffs were in a position where they could and ought to have heard tlie signals had they been given. Sonde of them were looking and listening for the train, and state positively that they could have heard the usual signals if they had been given. Both of the plaintiffs swear positively that the signals were not given. Quinn was positive that no bell was rung or whistle sounded., McClelland was positive that the bell was not ringing. .Buucell, Holliday, Brown, and others testified that they could have heard the bell, if it had been ringing, and that they did not hear it. This, in our opinion, raises a conflict of evidence against tlie affirmative testimony of defendant’s witnesses.

The question whether negative testimony can, in any case, have the force and effect o! positive testimony rvas considered by this court in Cohen v. Eureka and Palisade Railroad Company, 14 Nev. 386, and it was there declared that where the witnesses were in a position to hear, their testimony that the bell was not rung “was just as positive 'as such testimony can ever be.”

In Benwick v. New York C. R. R. Co., 36 N. Y. 132, the court, in passing upon this question, said: “As some of the plaintiffs’ witnesses were in a condition to hear it (the bell) if it had been rung, and were giving their attention to the train, the fact that they did not hear it is evidence conducr ing to prove that it was not rung. * * * The conflict raises a question of fact, which the plaintiff had the right to have determined by the jury.” To the same effect see Byrne v. New York C. & H. R. R. Co., 14 Hun, 322; Dublin W. W. & R. R. Co. v. Slattery, 3 Appeal Cases (L. R.), 1155. In the case last cited there were ten witnesses who testified that the whistling occurred at' the proper time and in the usual' way, and only three witnesses testified that, being in a position in which,'if it' so-occurred, the sound should have reached their ears, they did not hear it. Lord O’Hagan, in giving his views upon this state of facts, said: “ It is impossible not to be struck by the apparent weight of the defendant’s proof. But, as was observed in the Irish court of common pleas, the jury saw the witnesses, and the judge did not condemn the verdict. And whether it was right or wrong, the jurors alone were competent, legally and constitutionally, to decide between the ten who testified on the one side and the three who testified on the other. It was urged, and the authority of an eminent judge was vouched to sustain the suggestion, that proof of the want of hearing was no material proof at all. But this seems to me untenable. Assuming that a man stands in a certain position, and has possession of his faculties, the fact that he does not hear what would ordinarily reach the ears of a person so placed, and with such opportunities, seems to me manifestly legal evidence, which may vary in its value and persuasiveness, which may in some instances be of small account, and in others be the strongest and the only evidence possible to be offered; but at all events can not be Avithheld from the jury; and if this be so, there was here a conflict of testimony on which the jurymen, and they alone, were competent to pronounce.”

In Kansas Pacific Railroad Co. v. Richardson, which in many respects was similar to the. case in hand, Horton, J., in delivering the opinion of the court, said: “Though most of this evidence on the part of the plaintiff below was of a negative character, and the company gave positive evidence of a greater number of witnesses to contradict and overcome it, still there was a sufficient conflict of evidence to raise a question of fact, which the trial court was justified in submitting to the jury. The evidence against the giving of the signals was inore, when carefully considered, than a mere ‘I did not hear.’' Some of these witnesses had their attention directed to the train as it came in; they were looking at the train, and were in a position to give heed to the presence or absence of the signals. The evidence conduced to prove that the signals were not properly and timely given; at least it ivas some evidence in that direction. The failure to give signals must be proved by witnesses that they did not hear them. ■ When others testify that they gave them and others testify that they did not hear them, there is evidence on both sides to be considered. The evidence before the court being sufficient to be submitted to the jury, and to be considered by them, it was sufficient to sustain a finding that proper signals of warning of the approach of tbe train to the crossing were not given.” (The Eeporter, vol. XII., No. 16, 493.) We are of opinion that the vital question whether plaintiffs were guilty of contributory negligence, whether they exercised ordinary care and caution, was properly left to the jury for decision, and that, inasmuch as there is a substantial conflict in the testimony offered by the respective parties, the verdict of the jury ought not to be disturbed upon the ground of the insufficiency of the evidence.

It is next argued that the court erred in giving the first instruction asked by plaintiffs. This instruction reads as follows: “The jury are instructed that it is as much the duty of a railroad engineer to exercise prudence and caution in running his train, so as to avoid injury to persons crossing a track, as it is the duty of such persons to avoid contact with the train. Therefore, if they believe from the evidence that the engineer who was driving the express train on the morning of June 12, 1877, had an opportunity to see Bunting’s team on the main track, and could have stopped his train with safety to the same, and to the passengers and railroad employees on same in his then situation, and could prudently have avoided collision with the team, his failure so to stop amounts to negligence, and fenders the defendant liable for damages, and such liability attaches even though the plaintiffs contributed to the injury ,by their own carelessness or negligence.” The first portion of this instruction is not objected to. The latter portion is carelessly drawn, and it is not as clear as it might have been made; but the principle of law embodied therein is not erroneous.

The questions ordinarily applicable to cases like this are, first, whether the damages were occasioned entirely by the negligence of the defendant, or second, whether the plaintiffs so far contributed to the injury by their negligence or want of ordinary care and reasonable diligence, that, but for such negligence or want of ordinary, care and cau-tion on their part, the accident would not have happened. In the first place, if the question was answered in the affirmative, the plaintiffs would be entitled to recover, in the second they would not; as but for their own fault the accident would not Lave happened. But it does not necessarily follow that the damages must have been occasioned solely by the negligence of the defendant, for if the plaintiffs were in a remote degree negligent, but their negligence was not the proximate cause of the injury, and they exercised ordinary care to avoid the injury, they would still be entitled to recover; and although the plaintiffs may not have been entirely free from fault, they would, nevertheless, be entitled to recover if the defendant, in the exercise of ordinary care and caution, could have prevented the injury.

This last qualification is applied in a great variety of cases, the most frequent of which, as found in the books, is where cattle are injured upon the track of a railroad and where the engineer of the train could, after seeing them, by the use of ordinary care upon his part, have avoided the injury; but it is proper to be given in all eases where there is any testimony tending to show that the defendant was guilty of gross or willful negligence.

The views -we have expressed upon this point are sustained by abundant authority. (Butterfield v. Forrester, 11 East, 60; Bridge v. The Grand Junction R. R. Co., 3 M. & W. (Exch.), 244; Davies v. Mann, 10 M. & W. (Exch.), 545; Tuff v. Warman, 94 Eng. Com. Law, 584; Bradley v. London & N. W. R. R. Co., 1 Law Rep. (appeal cases), 759; Solen v. & V. T. R. R. Co., 13 Nev, 106; Kansas Pacific R. R. Co. v. Pointer, 14 Kan. 37; Morrison v. The Wiggins Ferry Company, 43 Mo. 383; Brown v. The Hannibal & St. Joseph R. R. Co., 50 Mo. 465; Kerwhaker v. Cleveland, C. & C. R. R. Co., 3 Ohio St. 172; Northern Central R. R. Co. v. Price, 29 Md. 437; Baltimore & Ohio R. R. Co. v. Dougherty, 36 Md. 368; Wharton on Negligence, sec. 388; Shearman & Redfield on Negligence, secs. 36, 493.)

The important question, presented by the testimony, was whether the plaintiffs exercised ordinary care and caution, and the„ principal objection, urged by appellant’s counsel, to the instruction is, that it was not applicable to any evidence in the case. We are, however, of the opinion that there was some evidence that justified the giving of a proper instruction upon this point. There was testimony offered by both parties as to tbe distance within which the train might have been safely stopped. Kemp, a witness for plaintiffs, testified that a train running at the rate of twenty miles an hour could be safely stopped, by the use of air brakes, in one hundred and twenty-five yards;' that if the train was stopped in two hundred and twenty-five feet it would- indicate a speed of about twelve miles an hour. The testimony upon the part of the defendant tended to show that the train was stopped within a distance of about two hundred and fifty feet.

It is true that this testimony was offered for the purpose of showing the rate of speed at Avhich the train Avas moving. But it is not improper to consider it Avith reference to another branch of the case. The defendant, for the purpose of shoAving that plaintiffs did not exerci.se ordinary care, introduced several witnesses whose testimony tended to shoAV that the obstructions upon and along the north side track did not prevent the plaintiffs from seeing defendants’ train at distances varying, as they approached the main track, from one hundred to five hundred feet, in ample time, after arriving at the north side track, to have stopped their team if they had been looking in that direction, and thereby have avoided the injury.

This testimony, like the edges of a sword, cuts both Avays. While it tended to prove a Avant of care upon the part of plaintiffs, it also tended in another direction to prove gross negligence on the part of the defendant. There Avas a decided conflict of evidence upon this point. If the jury believed the testimony upon the part of the defendant, it Avould have been their duty to determine whether the engineer of the train, had he been keeping a reasonable lookout, as it Avas his duty to do, could not have seen the horses attached to plaintiff’s Avagon before, or at least as soon as, the plaintiffs could have seen the train; and in vieAv of this testimony it Avas, perhaps, proper for plaintiffs to ask the court to submit to the jury the question Avhether the defendants’ engineer could not, by the exercise of ordinary care and caution, after discovering plaintiff’s team, have lessened the speed or stopped the train, with safety, in time to have avoided ■the collision.

We are free to confess that we do not think it was neces-saiy to introduce this element of gross or willful negligence into the case; but we are unwilling to say that there was no evidence to which the instruction might apply. .The fact is that-the testimony of the defendant’s engineer, evidently offered for the purpose of showing that he was not at fault, as might be iisferred from the testimony of other witnesses, tended to support the plaintiffs’ theory that the obstructions on and along the north side of the track prevented them from seeing the train in time to avoid the collision. This engineer testified that he was sitting in his usual place looking ahead and that he did not see the horses until the locomotive was right on to them, and that it was impossible for him to have checked the speed of the train, or stopped it in time to prevent the collision.

But even if we should concede that the instruction was to some extent inapplicable to the facts, it would not necessarily follow that the judgment should be reversed; certainly not, if it is apparent from a consideration of all the instructions that the jury could not have been misled thereby.

It is argued by appellants’ counsel that the instruction is contradictory to and inconsistent with instruction number four, given by the court of its own motion, as follows:

“If you should believe from the evidence that the defendant was guilty of culpable negligence in running its train of cars into Reno on the moruing of the twelfth of June, A. D. 1877, nevertheless, the plaintiffs can not recover, if they could have avoided the injury by the exercise of ordinary care.”

If these were the only instructions given, the objection would have more force. But from an inspection of the record it clearly appears that instruction number four was given upon the theory that if plaintiffs’ negligence was the proximate cause of the injury they could not recover, and that the jurors, as reasonable men, must have so understood it, and that the instruction given at the request of plaintiffs introduced another and different element for their consideration.

In Radley v. London & N. W. R. R. Co., supra, .Lord Penzance said that the law in these eases of negligence was well settled. “The first proposition is a general one, to this effect, that the plaintiff in an action for negligence can not succeed if it is found by the jury that he Las himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first, namely: that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have' avoided the mischief which happened, the plaintiff’s negligence will not excuse him.”

In Brown v. The Hannibal & St. Joseph Railroad Co., supra, the lower court instructed the jury as follows: “Even if the jury should believe from the evidence that the plaint- . iff was guilty of negligence or carelessness which contributed to the injury, yet if they further believe from the evidence that the agents or servants of defendant, managing the locomotives or machinery of the defendant with which the injury was inflicted, might have avoided the said injury by the use of ordinary care and caution, the jury will find for plaintiff.”

The supreme court said that this instruction was “ entirely unobjectionable.” In that case, as well as in this,' it was argued that the negligence on the part of the plaintiff was “unaccountable and inexcusable,” and that her carelessness was entirely inconsistent with the right to recover damages “founded on the negligence of the defendant.”

The rule is well settled that all the instructions must be considered together, in order to determine whether or not the jury may have been misled In the present ease the jury were repeatedly told, in the instructions of the court, that if they believed, from the evidence, that the plaintiffs did not exercise ordinary care and diligence, or that their negligence was the proximate cause of the injury, they were not entitled to recover, although the defendant was negligent, in ' not ringing its bell or blowing its whistle, or running its train at an unusually fast rate of speed. This principle was presented in every imaginable form, at great length, as strongly in favor of the defendant as the law Avould Avarrant.

We quote but one instruction, in addition to number 4, among the many that Avere given, to illustrate the general principle announced by the court:

“Even though the jury may find that the defendant corporation did not on the occasion of the accident in all respects, or in any respect, fulfill any obligation it was under of giving usual, and ordinary signals of its approach, so as to warn passers of the approach of its train, yet that circumstance, or those circumstances, does not and do not shield the plaintiffs from the exercise of ordinary care and prudence on their part. The fact, if the jury shall so find it, that the train of the defendant corporation approached the crossing of-Sierra street without blowing any Avhistle, Avhere the Avhistle had usually been blown theretofore, and without ringing any bell, does not of itself authorize the plaintiffs to recover damages, if the plaintiffs, notwithstanding the negligence of the railroad company, recklessly exposed themselves to danger; and if it aj)pears to the jury that the injury complained of Avould uot have occurred but for their own misconduct or negligence, they can not recover damages, but must bear the consequences of their oavu folly.”

All that Avas said by the court, as to the right of the plaintiffs to recover, is embraced in the folloAviug instruction: “If you shall be. of the opinion, after a full, fair, candid, and unprejudiced review of all the testimony given on behalf of the respective parties, that on the day and year, and at the place alleged in the complaint, the plaintiffs, Avhile exercising that due care Avhich a reasonably prudent man under the circumstances of the case would exercise, Avere injured and their property destroyed by being run into by the train of the defendant, and that the collision was wholly caused by the neglect and carelessness of the defendant corporation, or that after discovering the plaintiffs upon the track, the defendant could have avoided the collision by the exercise of proper care, then the plaintiffs are entitled to a verdict, and nol otherwise.”

We think it is manifest that the instructions given by the court, as well as some portions of the evidence, authorized the plaintiffs to ask and the court to give tbe instructions complained of, and that in any event, it is apparent from a careful consideration of all tbe instructions given, that the jury could not bave been misled, to tbe prejudice of the defendant, as to tbe law of tbe case.

Tbe judgment of tbe district court, in each case, is affirmed.