Powell v. Nevada, California & Oregon Railway

28 Nev. 305

• Court: Nevada Supreme Court
• Decided: July 15, 1905
• Docket: No. 1661
• Status: Published

Opinion

By the Court,

Talbot, J.:

The decision of this court herein was rendered December 24,1904 (see page 40 of this volume). A petition for rehearing was filed January 23, 1905. The order granting the rehearing did not limit the purposes for which the rehearing might be had, although the main inducement for granting one was the statement in the petition that this court had omitted to particularly consider in its opinion plaintiff’s instruction No. 10, the giving of which to the jury is said by the appellant to be the basis of one of its main assertions that the district court erred. The briefs and the arguments on rehearing, presented last April and May, covered the contentions previously advanced and more, and have gone beyond the petition itself, and further than the questions involved on the appeal.

It is now urged that under the statute approved February 25, 1905, p. 33, c. 21, purporting to amend section 197 of the civil practice act, and which was passed after the determination of the appeal and after the filing and granting of the petition for rehearing, this court ought to remand the case, because it does not appear that tbe judgment is supported by a fair preponderance of tbe evidence. In opposing this contention. the validity of the amendment is . assailed by respondent. As indicated in the opinion, the evidence is ample to support the verdict under the statute as it stood before the passage of this late act. Following the usual precedent, the constitutional questions advanced by counsel will not be considered, when their adjudication is not necessary for a proper determination of the cause.

The attorney for respondent asserts that questions which were not raised on the original hearing will not be considered on rehearing, and cites the following eases so holding: Schafer v. Schafer, 93 Ind. 586; Manor v. Jay County, 137 Ind. 367, 34 N. E. 959, 36 N. E. 1101; Tubbesing v. Burlington, 68 Iowa, 695, 24 N. W. 514, 28 N. W. 19; Goodenow v. Litchfield, 59 Iowa, 226, 9 N. W. 107, 13 N. W. 86; Minneapolis Trust Co. v. Eastman, 47 Minn. 301, 50 N. W. 82, 930; Mount v. Mitchell, 32 N. Y. 702; Kellogg v. Cochran, 87 Cal. 192, 25 Pac. 677, 12 L. R. A. 104; San Francisco v. Pacific Bank, 89 Cal. 23, 26 Pac. 615, 835; Marine Bank v. National Bank, 59 N. Y. 73, 17 Am. Rep. 305.

Other decisions sustaining this rule are: Jacksonville, T. & K. R. Co. v. Peninsular Co., 17 L. R. A. 33, 66, 27 Fla. 1, 157, 9 South. 661; Cloud v. Malvin, 108 Iowa, 52, 75 N. W. 645, 78 N. W. 791, 45 L. R. A. 209; McDermott v. Iowa Falls R. Co., 85 Iowa, 180, 52 N. W. 181; Farrell v. Pingree, 5 Utah, 530, 17 Pac. 453; Evansville v. Senhenn, 151 Ind. 42, 47 N. E. 634, 51 N. E. 88, 41 L. R. A. 734, 68 Am. St. Rep. 218; Payne v. Treadwell, 16 Cal. 247; Dougherty v. Henarie, 49 Cal. 686; Lake Erie R. R. Co. v. Griffin (Ind. App.) 57 N. E. 722; Lybarger v. State, 2 Wash. St. 552, 27 Pac 449, 1029; Tolman Co. v. Bowerman, 6 S. D. 206, 60 N. W. 751; Robinson v. Allison, 97 Ala. 596, 12 South. 382, 604; Florida Nat. Bank v. Ashmead, 23 Fla. 391, 2 South. 657, 665; Weld v. Johnson Mfg. Co., 84 Wis. 537, 54 N. W. 335, 998; Moore v. Beaman, 112 N. C. 558, 17 S. E. 676; Hudson v. Jordon, 110 N. C. 250, 14 S. E. 741; Western News Co. v. Wilmarth, 34 Kan. 254, 8 Pac. 104; Chamberlain v. N. E. R. R., 41 S. C. 399, 19 S. E. 743, 996, 25 L. R. A. 139, 44 Am. St. Rep. 717; Coulter v. Portland Trust Co., 20 Or. 469, 26 Pac. 565, 27 Pac. 266; Merchants’ National Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851; Cincinnati v. Cameron, 33 Ohio St. 336; Hatto v. Brooks, 33 Miss. 575; Broom’s Succession, 14 La. Ann. 67; Ryerson v. Eldred, 18 Mich. 490; Hayne, New Trial and Appeal, 879; Beck v. Thompson, 22 Nev. 421, 41 Pac. 1.

As illustrative of this doctrine, we quote a few extracts from some of these opinions: Manor v. Board, 137 Ind. 394, 36 N. E. 1101: " Questions waived by silence of the original brief cannot be presented to this court on a petition for rehearing. (Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352, 11 N. E. 779; Union School Tp. v. First Nat. Bank, 102 Ind. 464, 2 N. E. 194; Thomas v. Mathis, 92 Ind. 560.)” Goodenow v. Litchfield: "We feel constrained to hold that after a cause has been submitted, determined, and a rehearing granted, it is too late to raise for the first time such a vital question as that now made in the argument filed in aid of the petition for rehearing; the saíne not being filed as a matter of right, but simply as a matter of grace and favor of the court.” Kellogg v. Cochran: "We have decided — and with manifest propriety — that we will not grant a rehearing in order to consider points not made in the argument upon which the case was originally submitted.” Schafer v. Schafer: The appellant, in order to avail himself of a question upon which to secure a judgment, must present that question in his brief upon the original submission.” The Supreme Court of Florida in Jacksonville, T. & K. R. Co. v. Peninsular Co.: "The proper function of a petition for rehearing is to present to us any omission or cause for which our judgment is supposed to be erroneous. No new ground or position not taken in the argument submitting the cause can be assumed.” Payne v. Treadwell: "The second ground upon which a rehearing is asked was not taken in the argument or in any of the briefs of counsel. It is too late to urge it now for the first time after the ease has been considered upon the points to w-hieh the attention of the court was called, and a decision has been rendered.”

We understand that appellant, by citing Beck v. Thompson, concedes this to be the practice, and suggests that it ought not to apply to a matter that could not have been advanced or waived at the time of the first argument. We have cited more cases to show the uniformity of the rule, as a stronger reason for not departing from it.

If the judgment of the district court and our opinion on appeal were correct at the time they were made, they cannot be invalidated on rehearing by this statute, passed subsequently, even if, for the purposes of the argument, its constitutionality be conceded. It is manifest that the rehearing was not granted for that purpose.

The instruction which we have mentioned as being under special objection is as follows: "No. 10. The jury is instructed that the law distinguishes the necessary nature of a locomotive whistle from that of a stationary whistle, intended for the purpose of notice only; that locomotive whistles are necessary, among other purposes, for the purpose of frightening animals off the track, and'to give notice of the approach of trains to persons about to cross the track at such a distance that the bell cannot be heard or the trains readily observed; and that in these and other cases their use upon railroads is both sanctioned and required by law; and that in such eases the usefulness of the whistle depends upon the alarming and frightening character of the noise it makes, and one of the purposes for which it is used is to frighten and to alarm. But the court instructs the jury the rule is different in respect to stationary whistles, intended for notice only, and that if used, if there is no necessity |or constructing or operating them in such a way as to alarm or frighten any person or animal of ordinary gentleness, any unnecessary alarming or frightening use of them, if productive of injury to another, is wrongful, and the proprietors should be holden responsible for the injury.”

That this instruction draws a correct distinction is apparent upon its face. The right of the appellant to maintain its shops within the city limits, and to use such a whistle as will not' endanger people traveling on the street, for the purpose of calling, dismissing, or notifying its employees, is not assailed or denied. That the company may operate its machinery with all necessary fixtures and appliances is conceded, but this right must be exercised with reasonable care, and so as not to injure or imperil the safety of others. Streets are for the use of the public for travel and transportation. The harm and damage lies in the sounding of a whistle of unusual and unnecessary loudness and discordance in such proximity to a frequented thoroughfare as to frighten horses of ordinary gentleness when rightfully driven there. Locomotive whistles are usually blown at long distances from crossings, to warn and alarm before the bell can be heard. When nearing the track, people with teams are generally on the alert with ear and eye to detect the whistle, noise, or coming of trains, and on their approach either turn away, or have their horses under tighter rein and better control than is usual or is to be expected or required when driving at other places. In traveling the street away from crossings, drivers are not so liable to expect and guard against the frightening of horses by whistles of exceptional volume and discordance. If the use of such be proper on locomotives, as well as of fog-horns at lighthouses, it is not necessary to maintain .either on stationary engines so near to the street as to endanger people driving horses of ordinary gentleness. There is a place, as well as a time, for everything under the sun. Whether the appellant maintained and blew a whistle that was unnecessarily alarming, and a menace to defendant’s right to drive an ordinarily gentle horse along the highway undisturbed, and which occasioned the accident and injury he sustained, were questions of fact for the jury. (Topeka Water Co. v. Whiting, 58 Kan. 642; Hill v. P. &. R. R. Co., 55 Me. 442.)

In the latter case the court said: " The whistle seems to be particularly adapted to give notice of the approach of trains to a crossing of a highway. The object then is to warn all persons of such approach in season to enable them to stop at a safe distance, and thus avoid risk of collision and of alarm to horses.”

To make the instruction law it was not necessary for any other court or legislature to have approved a similar one. As new conditions and circumstances arise in the affairs of men, decisions based on reason and justice must be made and promulgated to meet them. This theory and elasticity has long been the boast of the common law. By way of illustration and comparison, the court assumed and stated that the purpose of locomotive whistles was to frighten and alarm — a matter of common knowledge, and of which proof was not necessary, as claimed by counsel.

Still urging that the district court erred in admitting evidence that another horse had been frightened at a different time by the blowing of the whistle, appellant brings to our attention the case of Cleveland Ry. v. Wynant, 114 Ind. 525, 17 N. E. 118, 5 Am. St. Rep. 644, in which admission of proof that other horses had shied at freight cars on the crossing was held to be error. This decision has been criticized as a refutation of its own reasoning, and is not in accord with the weight of authority.

In addition to Knight v. Goodyear Co., 38 Conn. 442, cited in the opinion, numerous eases hold that the fact that other horses were alarmed or shied has a tendency to show the frightening character of the object, and these decisions also indicate the liability for damages resulting from accidents arising under circumstances similar to those existing here. In Hill v. Portland & R. R. Co., 55 Me. 440, 92 Am. Dec. 601, plaintiff, driving a quiet horse, stopped near the crossing because the train was at the depot, the engine'being only fifteen or twenty feet from the highway, and he did not think it prudent to pass. The engineer, according to the custom on the road, sounded the whistle twice very sharply and briefly. The horse suddenly turned, and threw the plaintiff out of his carriage. The company was held liable for his injuries. Proof that the sounding of the whistle had a similar effect on other horses was received to show its tendency, and the maxim, "So use your own property as not to injure the rights of another” was applied.

In Gordon v. Boston & Maine R. R., 58 N. H. 396, plaintiff was driving about twenty feet from the crossing when steam was allowed to escape suddenly from a locomotive on a side track about two rods from the highway. The noise frightened the horse, and it overturned the carriage. The court refused to instruct the jury that the defendant was not liable for an injury from the fright of the horse in consequence of the ordinary or necessary or reasonable use of the locomotive upon its own land, not in the highway, but charged that the company, in the management of its engines and machinery, was bound to exercise towards persons traveling the highway crossing the care, skill, and diligence that men of ordinary prudence would use under the circumstances, having due regard to the rights of those attempting to pass. Evidence that other horses were frightened by the noise of the steam from the locomotive was held to be proper.

In Crocker v. McGregor, 76 Me. 283, 49 Am. Rep. 611, there was a verdict for the plaintiff for an injury caused by the fright of her horse by steam escaping from the defendant’s mill, situated on the margin of the public highway. Witnesses were properly allowed to testify that other horses when passing were frightened by the escaping steam.

In Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, the case was reversed because the trial court rejected evidence that other gentle horses had been frightened by a campaign flag suspended across the street, and the principle that proof of other accidents will not be received was held inapplicable. The court said: "This precise question has been decided in favor of the plaintiff’s contention by many courts of the highest respectability, and we have been referred to no decision to the contrary. In Brown v. Eastern & Midlands Railway, 22 Q. B. D. 391, 393, which was an action for an injury caused by the shying of the plaintiff’s horse at a heap of dirt, the Court of Queen’s Bench held that the plaintiff was rightly permitted to show that various other horses had previously shied at the same place, and all the judges of the Court of Appeal 'were clearly of opinion that the evidence was admissible, and affirmed the decision of the queen’s bench division.’ House v. Metcalf, 27 Conn. 631, was a suit for maintaining a wheel which frightened the plaintiff’s horse. The court says the plaintiff 'had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation, from which the jury might infer what effects it would naturally, necessarily, or probably produce, but also to prove wbat effects it had produced in fact. * * * The inquiry in every such case is not whether the evidence offered is sufficient to prove the fact claimed, but whether it tends to prove it.’ In Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55, a suit for damages caused by the fright of a horse at a pile of lumber, evidence was received that other horses had been frightened by the same pile. The justices of the Supreme Court of New York who sat in Champlin v. Penn Yan, 34 Hun, 33, 37, unanimously sustained the admission of evidence 'that on another occasion, prior to this accident, a flag similar to this in appearance, suspended over the same street and in a similar manner, did frighten other horses when driven along the street under the same.’ The Court of Appeals of New York takes a similar view of the law. (Quinlan v. Utica, 11 Hun, 217; Id., 74 N. Y. 603; Wooley v. Grand Street & Newtown Railroad, 83 N. Y. 121.)”

In Topeka Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877, 39 L. R. A. 90, the plaintiff was driving on the street when the horse became frightened at the water spurting from a ■hydrant about one hundred feet away, turned suddenly, and capsized the buggy. She received a broken arm and other injuries. The flowing water could have been seen five hundred feet away, but was not noticed by her until the time the horse turned. There was proof that three other driving horses had been frightened. It was held that the license granted by the municipality to the water company to place mains and hydrants and to flush carried with it the obligation to do so with reasonable care and in such a manner as not to imperil the safety of those passing, and that whether an object is calculated to frighten a gentle horse is usually a question for the jury. A verdict for $5,000 was sustained.

Other cases upholding proof of the behavior of other horses and sustaining the recovery of damages are Folsom v. R. R., 68 N. H. 461, 38 Atl. 209; Thomas v. Springville, 9 Utah, 431, 35 Pac. 503; Crocker v. McGregor, 76 Me. 284, 49 Am. Rep. 611; Potter v. Natural Gas Co., 183 Pa. 575, 39 Atl. 7; Stone v. Pendleton, 21 R. I. 333, 43 Atl. 643; House v. Metcalf, 27 Conn. 632; Tomlinson v. Derby, 43 Conn. 563; Smith v. Sherwood, 62 Mich. 159, 28 N. W. 806; Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55: Nye v. Dibley, 88 Minn. 466, 93 N. W. 524.

Nor are we able to say that the verdict is excesssive. (13 Cyc. 136, 137.) There was evidence indicating some mental suffering, as well as the injury to the arm and physical disability, and, saddest of all, tending to show an impairment of the mind, which probably no rational men would want to undergo for the amount of the judgment. It is unnecessary to revert to other suggestions made in the elaborate and interesting briefs.

We are still satisfied with the correctness of the opinion as originally rendered herein, and it and the judgment and order of the district court are affirmed.

Remittitur forthwith.

Fitzgerald, C. J.: I concur. Norcross, J., did not participate in the foregoing decision.