Bourquin v. The Missouri Pacific Railway Company
| Decision Date | 09 November 1912 |
| Docket Number | 18,252 |
| Citation | 88 Kan. 183,127 P. 770 |
| Parties | E. BOURQUIN, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1912.
Appeal from Labette district court. Opion filed November 9, 1912. Affirmed.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. MOTION FOR NEW TRIAL--Sustained--Assumption. Where a motion for a new trial on all the statutory grounds has been sustained generally this court on appeal will assume, in support of the ruling, that the trial judge was not able to reconcile the verdict with what he regarded as the true weight of the reliable testimony.
2. DUTY OF COURT--Grounds for Sustaining Motion. A motion for a new trial on several grounds is, in effect, a separate motion on each ground, and the better practice would be for the trial court, when sustaining such a motion, to state frankly on the record the specification or specifications which are upheld and those which are overruled.
3. EVIDENCE--Records--Superintendent of Railroad Transportation. Under the rule dispensing with the production of voluminous or multifarious documents when impracticable, and the facts stated in the opinion, it is held that a record in the office of the defendant's superintendent of transportation, consisting of tables summarizing the use and movement of freight cars on defendant's lines for each month of a series of years compiled by his office force under his supervision from information derived from many reports, telegrams and other communications from various persons, was properly admitted in evidence as tending to show an abnormal rush of business and congestion of traffic in one of the months of the tabulation.
C. E. Benton, and W. P. Dillard, both of Fort Scott, for the appellant; Francis M. Brady, of Oswego, of counsel.
Archie D. Neale, of Chetopa, for the appellee.
The plaintiff sued the defendant for damages for failure to furnish cars ordered for the shipment of hay, and for the penalty affixed for violation of the reciprocal demurrage law. (Gen. Stat. 1909, § 7203.) A verdict was returned for the defendant, which the court set aside, and the defendant appeals from the order granting a new trial.
The motion for a new trial contained several grounds, one of which was that the verdict was contrary to the evidence. The record does not show on what ground the motion was sustained. Under the long-settled practice it will be assumed that the court was not able to reconcile the verdict with what it regarded as the true weight of the reliable testimony. Although the jury, while in possession of the case, were the exclusive judges of the credibility, weight and effect of the evidence, when the trial judge was called upon to consider the motion for a new trial it was essential that he should be satisfied with the verdict or else sustain the motion.
A motion for a new trial on several grounds has the effect of a separate motion on each ground, and in justice to litigants the trial judge should state frankly upon the record, when granting a new trial, the specification or specifications of the motion that are sustained and those that are overruled. If this were done the litigation would be ended, in many cases, by an appeal to this court. In this case a suggestion comes from outside the record that the new trial was probably granted because the court was of the opinion that certain important evidence had been wrongfully received, and for no other reason. If the record disclosed that such was the fact a new trial would not be necessary since, as will appear later, this court is of the opinion that the evidence was properly admitted. In most instances a blanket ruling is quite unfair, and justice would be promoted if the practice suggested were generally adopted.
The defendant claimed it could not comply with the plaintiff's demand for cars for causes which could not be avoided by the use of reasonable foresight and diligence. (Gen. Stat. 1909, § 7201.) In support of this claim evidence was introduced tending to show an abnormal rush of business and congestion of traffic in the month of October 1911, when the plaintiff's requisitions were made. ( Milling Co. v. Railway Co., 82 Kan. 256, 263, 108 P. 137.) A portion of this evidence consisted of two tables, summarizing the total number of loaded cars moved on the defendant's lines in each month from July, 1905, to January, 1912, and the total number of cars of revenue freight loaded locally for the same period. In each instance the figures for the month in question were far above those for...
To continue reading
Request your trial
-
United States v. Mortimer
...Bonding & Ins. Co. v. Norwich Pharmacal Co., 2 Cir., 18 F.2d 934; State v. Findley, 101 Mo. 217, 14 S.W. 185; Bourquin v. Missouri Pac. R. Co., 88 Kan. 183, 127 P. 770. Obviously this rule loses none of its force by reason of the passage of the recent statute, 28 U.S.C.A. § 695, under which......
-
Cole v. Lloyd
...evidence of the exercise of arbitrary power in granting a new trial. The contention is too broad. Although the practice recommended in the Bourquin case can be followed quite generally benefit to all concerned, including appellate courts, there are cases in which a trial court might not be ......
-
Arnold v. Harte
...Ryan, 49 Kan. 1, 12, 30 P. 108; Murray v. Railway Co., 87 Kan. 750, 125 P. 45; Putnam v. King, 87 Kan. 842, 126 P. 1093; Bourquin v. Railway Co., 88 Kan. 183, 127 P. 770; Moffatt v. Fouts, 105 Kan. 58, 181 P. Atkinson v. Darling, 107 Kan. 229, 191 P. 486; Hughes v. Vossler, 110 Kan. 279, 20......
-
Hooven v. First Nat. Bank
...statements, a competent witness, who has perused all the documents, may state summarily the net results thereof." Bourquin v. M. P. Ry. Co., 88 Kan. 183, 127 P. 770. Our court embraced the above doctrine in Cecil v. Montgomery, 95 Okl. 184, 218 P. 311, when it quoted: "The rule rejecting se......