Alt v. Chicago & N.W. Ry. Co.
| Decision Date | 21 February 1894 |
| Citation | 57 N.W. 1126,5 S.D. 20 |
| Parties | ALT v. CHICAGO & N.W. RY. CO. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. To the instructions of the court the plaintiff took the following exception: "Plaintiff excepts to all of the charges and to the special request 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." Held, that plaintiff was not entitled to have any question regarding the instructions considered by the trial court on a motion for a new trial, for the reason that the exceptions taken were too general to be available on appeal to this court.
2. Plaintiff's counsel specified, in his 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." Held to sufficiently conform to the requirements of our statute in that regard.
3. To judicially determine a question of negligence both a court and a jury are required. 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.
4. The question to be determined by this court, where the refusal of a trial court to direct a verdict is raised on appeal, is whether such court was justified, in the exercise of its best judgment and sound discretion, 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.
5. An application for a new trial upon the ground of the insufficiency 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; and 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.
Appeal from circuit court, Codington county; J. O. Andrews, Judge.
Action for personal injuries by Adelbert Alt against the Chicago & Northwestern Railway Company. There was a verdict for defendant, and from an order granting a new trial, it appeals. Affirmed.
Sterling & Keep, (A. W. Burtt, of counsel,) for appellant. Van Buskirk & Weeden, (C. X. Seward, of counsel,) for respondent.
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 ascertain 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 of 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 the instructions were erroneous. Hayne, New Trial & App. § 128; 2 Thomp. Trials, 2398; Elliott, App. Proc. 791; Smith v. Coleman, (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 in 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 we 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 side track 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,...
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