Bliss v. Wolcott

• Decision Date: 21 February 1910
• Citation: 107 P. 423,40 Mont. 491
• Parties: BLISS v. WOLCOTT.
• Court: Montana Supreme Court

107 P. 423

40 Mont. 491

BLISS v. WOLCOTT.

Supreme Court of Montana

February 21, 1910

Appeal from District Court, Park County; Frank Henry, Judge.

Action by Frank Bliss against J. H. Wolcott. From an order granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

Miller & O'Connor, for appellant.

Frank Arnold, for respondent.

BRANTLY C.J.

This action was brought by plaintiff to recover damages for injuries to himself and his horse, alleged to have been caused by the negligence of the defendant in driving his automobile along one of the streets in the city of Livingston, whereby the horse became frightened and unmanageable and ran away. The complaint contains two counts The first alleges negligence on the part of the defendant in running and controlling the machine, by reason of which the injuries were caused; the second alleges a violation of the statute by defendant, in that he failed seasonably to turn to the right, upon approaching plaintiff, and thereby caused his horse to become unmanageable and run away. The answer puts in issue all the material allegations of the complaint. It alleges as affirmative defenses: (1) That the injuries complained of were due entirely to the negligence of plaintiff, and the dangerous and unsafe character of his horse; and (2) that plaintiff, knowing the unsafe and dangerous character of the horse, assumed all risk incident to driving it upon the streets or highways. Upon these allegations there was issue by reply. At the trial the matters alleged affirmatively in the answer were assumed by the court and counsel to present the issue of contributory negligence, and the case was submitted to the jury under instructions upon this issue. The defendant had verdict and judgment. The court having made an order granting plaintiff a new trial, the defendant appealed. The motion was made upon several of the statutory grounds. We find no justification for the order on any of the grounds assigned, save the first to wit, irregularity in the conduct of counsel for defendant whereby plaintiff was prevented from having a fair trial.

The charge of irregularity is predicated upon the conduct of counsel during argument to the jury. Upon the issue of contributory negligence, the defendant had adduced evidence which tended to show that the horse driven by plaintiff was unsafe and dangerous, in that it would become frightened and unmanageable at the sight of an automobile, and, if approaching it, would turn and run, whether the machine made noise or not. Some of this evidence was admitted over objection, which went to the order and form in which it was introduced, but not to its relevancy or materiality. When the court came to instruct the jury, however, all of this character of evidence was withdrawn from their consideration; the court charging them that, though they should conclude from the evidence that the horse was unsafe and would run away without apparent cause, the driving of it by plaintiff upon the streets and public highways was not an act of negligence, for the reason that this was not a breach of duty that he owed to the defendant, and that the evidence on this subject must, therefore, not be considered by them in arriving at a verdict. After the submission of these instructions and during his address to the jury, one of counsel for the defendant several times referred to the character of the horse as shown by this evidence, and commented upon it as furnishing a reason why the plaintiff should not recover. Counsel for plaintiff interrupted him, objected to his reference to the evidence, and asked that the court instruct the jury to disregard his remarks. The court overruled the objection and directed counsel to proceed, saying that he was within his rights. In view of the instructions already given to the jury, the remarks of counsel were entirely out of place. The court should have instructed the jury as requested, and directed counsel to refrain from further comment.

The instructions already given to the jury, whether right or wrong, were the law of the case. Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714; State v Dickinson, 21 Mont. 595, 55 P. 539; King v. Lincoln, 26 Mont. 157, 66 P. 836; McAllister v. Rocky Fork Coal Co., 31 Mont. 359, 78 P. 595. They directed the jury that, in finding their verdict upon the issue of contributory negligence, they should not consider the evidence in question at all. The law, thus formally declared by the court as the rule by which the jury must be guided, was for the time being, and until changed or modified, binding both upon the court and the jury. It was also the rule by which the argument of counsel should have been controlled. In permitting counsel for defendant to pursue the course he did, by...