Chicago & N.W. Ry. Co. v. Ott

• Decision Date: 22 June 1925
• Docket Number: 1212
• Citation: 237 P. 238,33 Wyo. 200
• Parties: CHICAGO & N.W. RY. CO. v. OTT [*]
• Court: Wyoming Supreme Court

237 P. 238

33 Wyo. 200

CHICAGO & N.W. RY. CO. v. OTT ^[*]

No. 1212

Supreme Court of Wyoming

June 22, 1925

Rehearing Denied; See 238 P. 287.

Rehearing Denied 33 Wyo. 200 at 222.

ERROR to District Court, Converse County; CYRUS O. BROWN, Judge.

Action by Edward Ott against the Chicago & N.W. Ry. Co. and another. There was judgment for plaintiff against defendant and it brings error. Rehearing denied; See 238 P. 287.

Affirmed upon condition.

John B Barnes, Jr., Wymer Dressler, Maurer & Walker, Robert D. Neeley and Paul S. Topping for plaintiff in error.

The action is within the Federal Employer's Liability Act; Pedersen v. D. L. & W. R. Co., 229 U.S. 146, 57 L. ed. 1125; Truesdell v. C. & O. Ry. Co., 169 S.W. 471; C. N. O. & T. Ry. Co., v. Tucker, 181 S.W. 940; Holmberg v. L. S. & M. S. Ry. Co., 155 N.W. 165; Arrest v. C. & P. S. R. Co., 154 P. 1100; questions submitted to the jury should have been applicable to the Act, and the court should have required plaintiff to amend accordingly. Defendant's motion for a peremptory instruction having been denied, defendant requested instructions numbered 2, 3, 11, 12, 15, 18 and 20 which were refused and defendant excepted; the case was submitted on instructions numbered 8, 17 and 19 over defendant's objection and exceptions. There was a variance between plaintiff's allegations and proof. Searle v. Ry. Co., 229 U.S. 155; Ry. Co. v. Slavin, 236 U.S. 454; defendant's requested instructions should have been given; Ry. Co. v. Tucker, supra; Ry. Co. v. Sylvester, 86 S.E. 275; plaintiff assumed the risks of his employment; Truesdell v. Ry. Co., supra; Cross v. R. R. Co., 177 S.W. 1127; the verdict is so excessive as to show prejudice and passion, 17 C. J. 906; Gregory v. Ry. Co., 8 N.Y.S. 525; the verdict was influenced by plaintiff's evidence of pain and suffering and instruction numbered 12 given over defendant's objection and exception; evidence of repairs or alterations made after an accident are not admissable; Baron v. Redding I. Co., 202 P. 274; Elias v. Lancaster City, 203 P. 638; Morse v. M. & St. L. R. Co., 30 Minn. 465; Lally v. Crookston L. Co., 82 Minn. 497; W. & A. R. Co. v. Rogers, 104 Ga. 164; C. P. & C. M. R. Co., v. Bretton, 3 Kan.App. 292; Howe v. Nedaris, 183 Ill. 288; C. & P. S. R. Co. v. Hawthorne, 144 U.S. 202; the court erred in receiving improper evidence in rebuttal and in sustaining objection to the testimony of Dr. Childs; Michaeals v. Harvey, 179 S.W. 735; Obrien v. West. I. Mfg. Co., 125 S.W. 804; Elliott v. K. C. (Mo.) 96 S.W. 1023; Priebe v. Crandall, 187 S.W. 605; Heithier v. Johns, (N. Y.) 135 N.E. 603; Dewey v. Co., 155 N.Y.S. 887; Fennelly v. Co., 193 N.Y.S. 641; Krause v. Sobel, 196 N.Y.S. 845; Dahlquist v. Co., 174 P. 833; plaintiff had waived the benefit of privilege, and the testimony of his physician should have been received; King v. Barrett, 11 O. S. 261; the privilege extends to the patient, not to the physician; Moreno v. Co., 170 P. 1088; City v. Wicker, 141 P. 963; Co. v. Mitchell, 132 P. 1104; Foreest v. Co., 129 P. 1049; instruction numbered 12 is erroneous; Co. v. Nelson, 203 F. 956; likewise instruction numbered 15; Ry. v. Ives, 144 U.S. 408; and the court erred in refusing instructions numbered 16 and 17; Randall Inst. 594; the giving of instruction numbered 5 was highly prejudicial, as there was no evidence of plaintiff's alleged impotency; the court erred in overruling defendant's motion and a new trial on the ground of newly discovered evidence; In Re McClellan's Est., 107 N.W. 681; Colo. Springs v. Togelsong, (Colo.) 94 P. 356; Southard v. Co., 91 A. 948.

Paul F. Showalter and Ray E. Lee for defendant in error.

An assignment worded. "Errors of law occurring at the trial excepted and etc." presents no question for review; Boburg v. Prahl et al, 3 Wyo. 325; C. B. & Q. R. R. Co. v. Morrison, 16 Wyo. 308; Wolbol v. Steinhoff et al, 25 Wyo. 227; Reece v. Rhodes, 25 Wyo. 91; Holdsworth v. Blyth & Fargo Co., 23 Wyo. 52; the same rule applies to assignments of error in admitting or excluding evidence without specifying the evidence referred to; error assigned, in that the verdict is not sustained by sufficient evidence, is contrary to the evidence and to law, and will not be considered unless the verdict be clearly, decidedly and strongly against the evidence; West. Union Tel. Co. v. Monseau, 1 Wyo. 17; Martin v. Union P. Ry. Co., 1 Wyo. 43; Hilliard Flume Co. v. Woods, 1 Wyo. 396; Fein v. Tonn, 2 Wyo. 113; Garbanati v. Hinton, 2 Wyo. 271; Edwards v. Murry, 5 Wyo. 153; Hardin v. Card, 15 Wyo. 217; Edwards v. O'Brien, 2 Wyo. 493; judgment for damages will not be disturbed on the ground that it is excessive where the evidence is conflicting; C. B. & Q. R. R. Co. v. McPhillamey, 19 Wyo. 47; in considering damages for personal injuries changes in living conditions should be considered; E. C. Boyes v. Des Moines Club, 170 N.W. 461; Hurst v. C. B. & Q. R. R. Co., 219 S.W. 566; Halloran v. New England, T. & T. Co., 115 A. 143; examples are presented in Hopkins v. New Orleans Co., 90 So. 512; Padrick v. Ry. Co., 150 N.W. 807 and cases cited therein; instruction numbered 9 is a correct statement of the law; instruction numbered 15 is approved in Engen v. Rambler Co., 20 Wyo. 95; Carney Co. v. Benedict, 22 Wyo. 362; Boatman v. Miles, 27 Wyo. 481; Hines v. Sweeney, 28 Wyo. 57; instruction numbered 16 correctly states the law; instruction numbered 3 was properly refused; Kuhn v. McKay, 7 Wyo. 41; instructions 5, 7 and 9 not material under the evidence and properly refused. Requested instructions 11 and 12 were covered by other instructions given; refused instructions 15 and 18 were covered by other instructions. It is proper to instruct the jury on the question of pain and suffering as an element of damage. On the question of repairs made after the accident, some evidence was objected to, and evidence on the same subject was received without objection, thus waiving the point; Reed v. Div. 25 U.S. 92; Moreno v. Co., 170 P. 1088; Kolka v. Jones, 6 (N. Dak.) 461, 71 N.W. 558; Springer v. Faulk, 59 F. 707; Warren v. Warren (Va.) 24 S.E. 913; Hutchinson v. Pinch, (Mich.) 64 N.W. 729; Bright v. Ecker, (S. Dak.) 69 N.W. 824; Levine v. Lancashire (Minn.) 68 N.W. 855; Hawver v. Bell (N. Y.) 36 N.E. 6; Ladd v. Sears, 9 Ore. 244; however we contend that all evidence on this point was properly received; Nugent v. Brenchard (N. Y.) 51 N.E. 1092; Martin v. Hutchinson, 105 S.E. 313; defendant in error did not testify with reference to his conversation with Dr. Childs, nor waive his right to claim the benefit of a privilege communication; Burgess v. Simes Drug Co., 89 A. S. R. 359; Maryland C. Co. v. Maloney, L. R. A. 1916 A 519; May v. N. P. R. R. Co., 81 P. 238; Mo. & N. A. R. R. Co. v. Daniels, (Ark.) 136 S.W. 651; Citizens Ry. Co. v. Shepherd, 65 N.E. 765; Baxter v. Cedar Rapids, 72 N.W. 790; Dutton v. Albion, 24 N.W. 786; the verdict and judgment were not excessive; Wyo. Cent. Co. v. LaPorte, 26 Wyo. 249; Ill. Cent. Ry. Co. v. Johnstone, 87 So. 866; City v. Wells, 191 P. 186; Fishleigh v. Ry. 171 N.W. 549; G. H. & S. A. Ry. Co. v. Hopkins, 202 S.W. 222; Central Coal & Coke Co. v. Graham, 196 S.W. 940; Meek v. Ry. Co., 164 P. 1117; Wilson v. B. & O. R. R. Co., 194 Ill.App. 491; error alleged for refusing new trial on ground of newly discovered evidence is unsupported and insufficient; Northaf v. State, 239 S.W. 215; it was by supplemental motion filed out of time; Mitter v. Co., 28 Wyo. 439; it lacked a showing of diligence, 21 Wyo. 447; Hardin v. Card, 15 Wyo. 217; Durham v. State, 29 Wyo. 85; it was in the nature of cumulative evidence; Link v. U. P. Ry. Co., 3 Wyo. 679; Freisheimer v. Missoula Co., 210 P. 329; In re Loucks' Estate, 117 P. 673; State v. Miller, 133 P. 878; Peterson v. Phelps, 143 N.W. 793; State v. O'Brien, 35 Mont. 482; Hamblin v. State, 81 Nebr. 148; even if the evidence claimed to be newly discovered were true, it would not alter the verdict, since it merely related to the measure of damages; Schlencker v. Risley, 38 Am. Dec. 100; Whipple v. R. R. Co., 35 A. 305; if it were impeaching in character, it would not justify a new trial; In re Est. of Chas. Colbert, 31 Mont. 461; People v. Williams, 242 Ill. 197; the point urged as to variance between allegations and proof contains no showing of surprise or prejudice and was insufficient; C. B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321; Hunt v. City of Laramie, 26 Wyo. 160; Phelan v. Co., 26 Wyo. 493; the point cannot be first raised on appeal; Fast v. Whitney, 26 Wyo. 433; the defense of assumption of risk cannot be urged where the negligence of a fellow-servant is the immediate cause of an injury, unless the injured party could have foreseen or expected such negligence; Read v. Director General of R. R., 258 U.S. 92; fellow-servant rule does not apply in cases coming within the Federal Employer's Liability Act; Boldt v. Pa. Ry. Co., 245 U.S. 441; negligence is a question for the jury; Hines v. Sweeney, 28 Wyo. 57; if one instruction of a group excepted to generally be good, there is no ground for new trial; Richey v. State, 28 Wyo. 117; if an amendment to the pleadings were necessary to conform to the proof and instructions of the court, it would be considered as made; C. B. & Q. R. R. Co. v. Pollock, 16 Wyo. 321; Phelan v. Co., supra; the rule extends to a case proven under Federal Employer's Liability Act; Thornhill v. Davis, 113 S.E. 370.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Edward Ott sued the Chicago & Northwestern Railway Company, a corporation, and R. R. Featherstone, defendants, for damages for injuries sustained. At the close of the testimony a dismissal was entered as to Featherstone. The jury returned a verdict in favor of plaintiff and against said...