Chenoweth v. Great Northern Ry. Co.
| Decision Date | 12 April 1915 |
| Docket Number | 3491. |
| Citation | 148 P. 330,50 Mont. 481 |
| Parties | CHENOWETH v. GREAT NORTHERN RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by Jay H. Chenoweth against the Great Northern Railway Company and another. Judgment for the plaintiff against the Railway Company, and that defendant appeals. Reversed and remanded.
Veazey & Veazey, of Great Falls, for appellant.
J. A Walsh, of Helena, S. A. Anderson, of St. Paul, Minn., and W F. O'Leary, of Great Falls, for respondent.
This action was brought against the Great Northern Railway Company and the Anaconda Copper Mining Company, to recover damages for personal injuries sustained by the plaintiff while working in the smelter at Great Falls. A motion for nonsuit by the mining company was sustained at the close of plaintiff's case.
As against the railway company, the complaint charges negligence in coupling a locomotive to empty cars, at the place where plaintiff was engaged in the performance of the duties of his employment, in such a careless and violent manner that the cars were driven eastward and upon the plaintiff, injuring his right arm to such an extent that amputation was necessary. It is also charged that it was the duty of the railway company to give plaintiff due warning that the cars were about to be moved, and, in failing in this respect, the company was negligent. The answer of the railway company denies the material allegations of the complaint and pleads contributory negligence and assumption of risk. In selecting a jury, the court called upon plaintiff and defendants to challenge peremptorily, and plaintiff exercised his first. The mining company then dismissed a juror, and this procedure was followed upon the call of the court for the second third, and fourth challenges. The railway company then advised the court for the first time that it was unable to agree with its codefendant as to jurors to be excused, and demanded that it be permitted to exercise four peremptory challenges. Upon the refusal of this demand, it requested to be permitted to excuse a particular juror then in the box, but this request was likewise denied. A verdict for $25,000 in favor of plaintiff and against the railway company was returned, and judgment entered thereon. Upon consideration of a motion for a new trial, the court made a conditional order for a reduction of the amount of the verdict to $15,000, and, plaintiff having complied with this order, the judgment was modified accordingly, and a new trial denied. The railway company has attempted to appeal from the judgment for $25,000, and has appealed from the judgment for $15,000 and from the order denying it a new trial. Plaintiff has moved to dismiss the appeals on the ground that the mining company was not served with the notice of appeal.
1. The judgment for $25,000 was not in existence at the time the appeals were taken. It had been superseded by the modified judgment for $15,000, and the attempt to appeal from the judgment as originally entered is therefore abortive.
2. We are unable to understand upon what theory the railway company could avail itself of the exception reserved to the order dismissing the mining company from the case, even if it desired to do so. The doctrine of contribution has no application to a case of this character. Tanner v. Bowen, 34 Mont. 121, 85 P. 876, 7 L. R. A. (N. S.) 534, 115 Am. St. Rep. 529, 9 Ann. Cas. 517; Rand v. Butte El. Ry. Co., 40 Mont. 398, 107 P. 87. The defendants were not charged as joint tort-feasors, in the sense of the term employed in Forsell v. Pittsburgh & Mont. Co., 38 Mont. 403, 100 P. 218, but were charged with negligence in which both participated. In such an action, the failure to fix liability upon one does not militate against plaintiff's right to recover against the other. Golden v. Northern P. Ry. Co., 39 Mont. 435, 104 P. 549, 34 L. R. A. (N. S.) 1154, 18 Ann. Cas. 886. If the railway company was guilty of negligence which proximately caused plaintiff's injury, the fact that the mining company was or was not negligent could not enhance or diminish the railway company's liability. Having secured its dismissal upon motion for nonsuit, the mining company was not thereafter an adverse or any other kind of party to this action. Its interests could not be prejudicially affected by a reversal as to the railway company, and service of notice upon it was therefore unnecessary.
3. The decision in Mullery v. Great Northern Ry. Co., 148 P. 323, is decisive against appellant's claim that it should have been allowed four separate peremptory challenges. If the railway company and the mining company were antagonists, that fact should have been brought to the attention of the court when peremptory challenges were first called for. By remaining silent until the plaintiff and the mining company had exercised the statutory number of challenges, the railway company acquiesced in the selections made by its codefendant. If entitled to separate challenges at all, it could exercise them only by alternating with plaintiff (State v. Sloan, 22 Mont. 293, 56 P. 364), and its failure to challenge in turn with the plaintiff constituted a waiver of its right. State v. Peel, 23 Mont. 358, 59 P. 169, 75 Am. St. Rep. 529.
4. A special demurrer for ambiguity and uncertainty in the complaint was not interposed, and these defects cannot now be urged upon our attention. Rev. Codes, § 6539. While the two theories upon which plaintiff predicated his right to recover are somewhat inconsistent, they are not so far contradictory that, if the allegations supporting one are true, the allegations supporting the other must of necessity be false; and this is the standard by which inconsistent pleadings are to be measured. Johnson v. Butte & Superior C. Co., 41 Mont. 158, 108 P. 1057, 48 L. R. A. (N. S.) 938; Hauswirth v. Butcher, 4 Mont. 299, 1 P. 714.
5. It is insisted that the damages are excessive and appear to have been awarded under the influence of passion or prejudice, and with this we agree. Of necessity, there cannot be any hard and fast rule established for determining the maximum compensation to be allowed for a personal injury, and the courts are therefore ever reluctant to interfere. But, while the amount of recovery in the first instance is committed to the wise discretion and unbiased judgment of the jurors, the Codes have provided for a review by the trial and appellate courts. Section 6794 specifies seven grounds, for any one or more of which a new trial may be had. The fifth is: "Excessive damages, appearing to have been given under the influence of passion or prejudice." In addition to the remedy by new trial, there is...
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