Axtell v. Northern Pac. Ry. Co.

• Decision Date: 31 December 1903
• Citation: 74 P. 1075,9 Idaho 392
• Parties: AXTELL v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Idaho Supreme Court

74 P. 1075

9 Idaho 392

AXTELL v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

December 31, 1903

MASTER AND SERVANT-TORTS OF SERVANT-INSTRUCTIONS-HEARSAY EVIDENCE-ACTS OF GOD.

1. The giving of conflicting and contradictory instructions upon a material question to be considered by the jury is error, and ground for reversal.

2. An instruction telling the jury that the master is liable for the wrongful acts of his servants if done in the course of their employment "even though the master did not authorize or did not know of such acts, or may have forbidden them," examined, and held erroneous and not correctly stating the law applicable to this case.

3. In an action against a railroad company for the wrongful acts of its employees, it must be shown that the person committing the injury was the employee of the company; and the difficulty of making the proof cannot obviate the necessity of doing so, although it may permit of slighter evidence than otherwise might be required.

4. Statements made by a person not shown to be an agent or employee of the party against whom such statements are sought to be introduced are incompetent and inadmissible unless such employment or agency be shown.

5. The following question held incompetent and improper to prove damages: "What estimate do you place upon the damages that were caused you by being thrown out of a home; that is apart from the value of your property?"

6. No liability attaches to anyone for damages sustained by reason of the acts of God and the forces of nature; but one who by his wrongful acts augments, diverts or accelerates those forces in such a manner as to injure another is liable in damages therefor.

(Syllabus by the court.)

APPEAL from the District Court, Kootenai County. A. E. Mayhew Judge.

Action by Joseph Axtell against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Reversed and remanded for a new trial. Costs awarded to appellant.

H. M Stevens and John M. Bunn, for Appellant, cite no authorities that are not cited in the opinion.

Charles L. Hietman, for Respondents, cites no authorities.

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

This action was commenced by the plaintiff, Joseph Axtell, in the district court in and for the county of Kootenai, on the twenty-first day of October, 1902, for the recovery of $ 1,200 damages suffered by the plaintiff on account of the loss of his house, household goods, furniture, wearing apparel, barn, woodhouse, outbuildings, tools, implements, vegetables and growing crops. Plaintiff alleges that on the night of July 4, 1902, a great and unusual rainstorm took place on the headwaters of Strong creek in Kootenai county, and along the course of that creek and Pend d'Oreille lake, and that the waters of that stream spread out over the valley, and that the employees of the defendant, Northern Pacific Railway Company, under employment and direction of its officers, cut timbers and brush and built a dam on one side of the stream a short distance above the house of plaintiff, and caused the waters to flow in a large volume in the direction of the buildings and premises of the plaintiff, and thereby caused them to be washed away and destroyed, and that such loss and destruction was the direct result of the wrongful acts of the defendant corporation in causing said dam to be built in the manner alleged. Defendant denied all the material allegations of the complaint, and upon these issues the case went to trial; and upon the twenty-third day of December, 1902, the jury returned a verdict in favor of the plaintiff in the sum of $ 300, and thereupon judgment was entered accordingly. Defendant moved for a new trial, which motion was by the court overruled, and defendant appealed to this court.

We will first consider the contention of the appellant that the instructions given by the trial court were contradictory and inconsistent, and therefore misleading and confusing to the jury. It appears from the record that the only instructions given in the case were those asked by the plaintiff and defendant. Plaintiff requested five separate instructions, all of which were given by the court. Defendant requested the court to give eight separate instructions, and the court gave all the instructions requested by defendant, except its request No. 1, which was a peremptory instruction to the jury to return a verdict in favor of the defendant. Instructions numbered 2 and 3 requested by plaintiff and given by the court are as follows:

"2. The court instructs you that the master or employer is severally liable for the wrongful acts of his servants or employees, whether of omission or commission, or whether fraudulent or deceitful, if done in the course of his employment, even though the master did not authorize or did not know of such acts, or may have forbidden them.

"3. The court instructs you that where a tort or wrong is committed by an agent or employee in the course of his employment, and while pursuing the business of his employer, the employer will be liable for the damages resulting from the wrongful act, although it is done without the employer's knowledge or consent, unless the wrongful act is a willful departure from such employment."

Appellant's counsel argue with much force and reason that these instructions are in direct conflict with instructions 6 and 7 requested by defendant and given by the court, which are as follows:

"6. The defendant in this case denies that any of its employees caused plaintiff's damage. In this respect, I instruct you that the plaintiff must show by a preponderance of the evidence that the defendant or its employees caused or contributed to the damage of the plaintiff; and the plaintiff must not only show that these men were in the employ of the railway company, but he must also show, by a preponderance of the evidence, that in so doing these men were acting within the lines of their employment.

"7. Even if you should find from the evidence that certain so-called Japs, or any of the employees of the defendant railway company who were working for the company as sectionmen or trackmen, did cause or contribute to plaintiff's damage, still you cannot hold the defendant liable in this case unless you should further find that the said Japs or trackmen were directed or instructed to do such work by the railroad company, or its authorized foreman, or other representative in charge."

It is only necessary to read these four instructions to be convinced that there is something wrong with some of them. In one instruction the court told the jury that the master would be liable even though he "did not authorize or did not know of such acts, or may have forbidden them." In another instruction he tells the jury that "the plaint...