Carlson v. Northern P. Ry. Co.

• Citation: 281 P. 913,86 Mont. 78
• Decision Date: 07 November 1929
• Docket Number: 6495.
• Parties: CARLSON v. NORTHERN PAC. RY. CO.
• Court: United States State Supreme Court of Montana

281 P. 913

86 Mont. 78

CARLSON v. NORTHERN PAC. RY. CO.

No. 6495.

Supreme Court of Montana

November 7, 1929

Appeal from District Court, Silver Bow County; Wm E. Carroll, Judge.

Action by Justus Carlson against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Walker & Walker, of Butte, and Gunn, Rasch & Hall, of Helena, for appellant.

Maury Brown & Maury, of Butte, for respondent.

GALEN J.

The plaintiff instituted this action to recover from the defendant the sum of $25,000 damages for injuries alleged to have been by him sustained while in the employ of the defendant railway company by reason of the negligence of a fellow employee in the process of lifting a railroad rail when engaged in unloading railroad rails from a push car. Upon issue joined the cause was submitted to a jury, which returned a general verdict in plaintiff's favor for the sum of $6,000, with interest thereon from July 28, 1927, and made answer to four special interrogatories submitted to it three of which are favorable to the plaintiff's contention of negligence on the part of a fellow servant resulting in his injury, and the fourth to the effect that the blank form of contract to be filled out and executed by the plaintiff releasing the defendant from liability on account of the plaintiff's alleged injury was not handed to the plaintiff on May 31, 1927, the date the plaintiff asked to be permitted to return to work after he had been laid off on account of his alleged injury, although he admitted having signed such paper four days after he had resumed work for the defendant company. Judgment was by the court entered upon the general verdict and the special findings of the jury. A motion for a new trial was made upon the sole ground of the insufficiency of the evidence to sustain the jury's findings and verdict, which was by the court denied, and the defendant has appealed from the judgment.

The sole question presented is the sufficiency of the evidence to justify the findings and verdict of the jury. This is the second appearance of this case on appeal in this court. On the former appeal from a judgment entered upon verdict in the plaintiff's favor for the sum of $8,000, on the first trial of the action, the cause was reversed and remanded to the district court for a new trial because of errors occurring during the trial. Carlson v. Northern Pacific Ry. Co., 82 Mont. 559, 268 P. 549, 551, 58 A. L. R 1304.

We have carefully reviewed all of the evidence and do not find it at variance with the statement thereof made by Mr. Justice Stark in writing the opinion of this court on the former appeal. The evidence appears to be substantially the same as that which was introduced upon the former trial; therefore, we do not feel called upon to lengthen this opinion by a restatement of the evidence. Suffice it to say that there is substantial evidence to the effect that the plaintiff is permanently injured, whatever the cause. Those desirous of knowing more of the facts disclosed from the evidence are respectfully referred to the review thereof contained in our former opinion. After a review of the testimony in our former decision, it is therein stated that: "Counsel for defendant have earnestly argued that the motion for directed verdict should have been sustained, because there was no substantial evidence to support the allegations of the complaint; that the plaintiff's testimony was so inherently improbable as to deny it any claim to respect, and that under the rule recognized by this court in Grant v Chicago, M. & St. P. Ry. Co., 78 Mont. 97, 252 P. 382, and Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 P. 141, and other cases, the verdict should be set aside and a new trial ordered on that ground." After careful consideration of this contention, we then held in disposition of the subject that: "Upon a consideration of all the testimony, we are impelled to the conclusion that the rule relied upon by counsel is not applicable to the facts disclosed in the record in the instant case."

In the face of such conclusion reached by this court the defendant on this appeal asserts that, "on the former appeal, the appellant earnestly contended, with much confidence in the merit of such contention, that there was no substantial evidence to sustain the verdict," yet "we are again presenting the question of the insufficiency of the evidence, which is the only ground relied upon in this appeal. We do this for the reason that we believe, with the additional evidence, at the second trial, of contradictory statements by plaintiff, of the physical impossibility of injury as claimed, of his impeachment, and of the inherent improbability of plaintiff's story, that the rule contended for on the former trial clearly applies to the evidence disclosed by the record on this appeal. No motion for a directed verdict was made in the lower court, as counsel felt that as this court had passed upon such question on the first appeal, that the proper place to again raise this question on the new record was in this court."

The former appeal was after a trial on the merits, and the question as to the sufficiency of the evidence is again urged as ground for reversal of the judgment. Had we deemed the position of the defendant meritorious on the former appeal we should have so decided, and thus saved the parties needless waste of time and expense incident to a retrial of the case. The...