Reid v. Ehr

174 N.W. 71, 43 N.D. 109, 6 A.L.R. 586, 1919 N.D. LEXIS 16

• Court: North Dakota Supreme Court
• Decided: July 16, 1919
• Status: Published

Opinions

Grace, J.

Appeal from a judgment and from an order of the district court of Ward county denying motion for a new trial, K. E. Leighton, Judge.

This action is brought by plaintiff to recover damages by reason of certain injuries suffered and sustained to her person by reason of a dangerous charge and current of electricity passing into and upon her body when she turned on an electric light in a room of a hotel operated by defendant, which room was being occupied by her as a guest and patron of the hotel. It is claimed and charged by plaintiff that the defendant negligently and carelessly failed to keep the electric lights and wires, etc., in said room in a safe and proper condition, and negligently and carelessly permitted them to become out of repair - that he carelessly and negligently failed to inspect and put said electric lights in proper repair, and permitted the same to remain in a dangerous and unsafe condition, and that the injuries of the plaintiff were caused thereby. Defendant admits that he was operating a hotel and that plaintiff was a guest therein, and avers the injuries, if any, to plaintiff were caused by her own negligence and contributory negligence. It is further averred in the answer that the plaintiff brought an action for the same injury against the Consumers’ Power Company and alleged that said injury was due to the wrongful act of that company; that she entered into a stipulation and agreement with it whereby she agreed to accept and that company agreed to give the sum of $100 in settlement of said claim from the said injury, and that she agreed to release them from any claims of damage by reason of the injury; that said sum so agreed to bo paid should not in fact be actually paid until after the time of this action and trial of the action between plaintiff and defendant herein. This point, we think, now is completely abandoned and will need no further consideration.

This action has been twice tried to a jury. In the first action plaintiff recovered a verdict for $2,800 damages. The trial court set that verdict aside on the ground that it was excessive, and that the same was the result of passion and prejudice on the part of the jury. From the order granting a new trial defendant appealed to this court on the grounds stated; the order appealed from was affirmed, the writer hereof dissenting, and the case was remanded to the lower court for another trial, which has occurred, and a verdict again returned in the plaintiff’s favor, at a trial had after the expiration of approximately two years since the first trial. The jury, at the second trial of the action, returned a verdict for plaintiff for $3,625. The second trial having occurred at about two years since the first trial, and the jury having been necessarily composed of men who knew nothing concerning the fact that a former verdict had been returned for $2,800, such fact clearly demonstrates there was no passion or prejudice exercised by the jury which returned the verdict for $2,800. The defendant in this action has appealed from the judgment and from the order refusing to grant the judgment, notwithstanding the verdict, or a new trial.

In his appeal defendant specifies nine assignments of error, and in addition thereto the insufficiency of the evidence to support the verdict. In effect, the same errors and reasons are assigned in support of the motion for a judgment non obstante or for a new trial and the appeal from the judgment. In the motion for a new trial it is again claimed that the damages are excessive and appear to have been given under the influence of passion or prejudice. There is no merit in such contention. The defendant assigns as error the admitting as evidence in this trial the testimony of witness, Mrs. Cotta, taken at the former trial. She personally appeared and testified upon the first trial. She was cross-examined by tbe same counsel wbo appeared for defendant upon tbe second trial. Her testimony was taken down in the ordinary manner at the former trial, and was transcribed and settled as a part of tbe statement of the case upon tbe former appeal. At tbe time of tbe present trial she was out of tbe state and beyond tbe jurisdiction of tbe court. Under these circumstances it was proper to road into tbe record in this case the evidence which she gave upon tbe first trial. It was proper for the trial court to receive and admit tbe evidence of tbe witness Ootta, given upon a former trial, and there was no error in admitting such evidence. There was no error in tbe court’s refusal to strike out the testimony of Mary Eeid, with reference to tbe absence of the witness Cotta, or the efforts of Mrs. Eeid to procure Mrs. Cotta, wbo was in Minneapolis, to come to Minot with her as a witness in this action. Tbe defendant maintains in bis assignments of error, and in bis assignment of tbe insufficiency of tbe evidence to sustain tbe verdict, that it appears from tbe undisputed evidence that tbe fixtures involved were tbe usual and ordinary Edison lamp and socket attached to tbe usual and ordinary drop cord, and that by no means known to science could this fixture give forth a shock or possibly cause a burn to a person turning on tbe current key. Tbe defendant further claims tbe undisputed evidence shows that tbe only way in which a shock could be obtained from such fixture would be for tbe person turning on tbe current to have grasped tbe brass socket of tbe lamp at its base, being at tbe same time connected with tbe current through tbe medium of metal or water, and then turning on tbe current by tbe means provided. There is considerable expert testimony to this effect. This is, however, not conclusive. Tbe physical facts speak louder than tbe testimony of tbe experts. Tbe plaintiff was injured. This cannot successfully be disputed. She was injured by an electric current from tbe lamp in question. In the face of these physical facts tbe testimony of tbe experts becomes of little probative force. Tbe jury must have disbelieved tbe testimony of the experts, and this they did have a right to do. Jurors, as a rule, are men of average and reasonable minds, and in tbe face of physical facts expert testimony did not have any. great weight with them. Tbe defendant maintains, further, that tbe plaintiff was guilty of negligence and contributory negligence. This question was one exclusively for the jury, and it has found against the contentions of the defendant, and that completely disposes of those questions.

We have examined the evidence, and it is quite sufficient to sustain the verdict. There was no error in the court refusing to grant judgment to the defendant, notwithstanding the verdict, nor error in denying defendant’s motion for a new trial. We have examined with considerable care all and each of the errors assigned and find no prejudicial nor reversible error. The matters in controversy have been submitted to two separate and distinct juries; the last trial was approximately two years after the former. There is not the least reason to claim any passion or prejudice. There has been no passion nor prejudice shown by the jury. There is no evidence nor any reason upon which to baso such a claim. The jury is the exclusive judge of the facts of the case, and it has decided against the defendant. He must abide the result. The order and judgment appealed from are in all things affirmed. Respondent is entitled to statutory costs on appeal.