Crosby v. Minneapolis, St. P. & S. S. M. Ry. Co., 5552.

• Decision Date: 17 December 1928
• Docket Number: No. 5552.,5552.
• Parties: CROSBY v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
• Court: North Dakota Supreme Court

57 N.D. 447

222 N.W. 476

CROSBY

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

No. 5552.

Supreme Court of North Dakota.

Dec. 17, 1928.

Syllabus by the Court.

Where the plaintiff commences an action in the proper county and the defendant seeks a change of venue for the convenience of witnesses, and it is shown that while its witnesses may be convenienced by the change the witnesses for the plaintiff will be inconvenienced, the action of the trial court in denying the change will not be disturbed.

A trial court has the right, in the exercise of judicial discretion, to exclude witnesses from the courtroom while other witnesses are testifying, and punish any violation of the order.

Though a witness may violate such order of the court excluding witnesses, the party calling him should not be deprived of his testimony unless it is shown this party was aware of the violation of the order and encouraged or connived at the disobedience thereof.

Where a witness has been debarred from testifying because of the violation of such an order, and the disobedience was without the knowledge, consent, or connivance of the party calling him, and the record shows that the testimony which this excluded witness would have given may have influenced the jury in its decision either in finding for the plaintiff or in the amount of the damages allowed, the refusal to permit the witness to testify was such error as requires a reversal of the case.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Josephine Crosby against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and a new trial granted.

John E. Palmer, of Minneapolis, Minn., B. L. Wilson, of Bowbells, and McGee & Goss, of Minot, for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BURR, J.

The plaintiff seeks to recover $20,000 from the defendant, and alleges in her complaint, among other things, that on or about the 20th day of October, 1926, while riding in an automobile driven by another on the streets of Flaxton, she was injured, owing to the fact that while crossing the tracks of the defendant the employees of the said defendant were negligent in attempting to make what is known as a flying switch and in doing so caused a train of cars to cross said street at a dangerous and unlawful rate of speed so that the automobile was struck, the plaintiff thrown out and injured, and that during said time the plaintiff herself was not guilty of any negligence. She further alleges that during said time the defendant failed to have a bell rung, whistle sounded, or warning given of the approaching cars, and caused a train of cars to stand upon the side tracks in such a way as to obscure the vision of persons desirous of crossing the tracks on said street. Defendant denies negligence, and alleges that if the plaintiff be injured in any way it was solely on account of the negligence of the driver of the automobile; that plaintiff herself had ample opportunity to avoid injury and, in any event, was not injured at all.

This action was commenced in the county of Ward, and in due time the defendant made a motion for a change of venue to the county of Burke on the ground, among others, that the plaintiff was a resident of Burke county; that if any accident occurred as she alleges in her complaint it happened in Burke county; that the plaintiff had previously commenced an action in Burke county against the defendant on the same cause of action, but dismissed the action without prejudice before final determination, and later commenced the action in Ward county; that the convenience of witnesses demanded the change of place of trial from Ward county to Burke county; that defendant would require the testimony of some 18 witnesses; of these it was more convenient for 14 of them to attend trial in Burke county; three more were expert witnesses residing in the vicinity of Bowbells; and that it was more convenient for all of these to go to the county seat of Burke county for trial than to go an additional 75 miles to Ward county. The motion for change of venue was opposed by the plaintiff, who set forth, among other things, that the convenience of her witnesses would require the trial of the case in Ward county; that the plaintiff was treated for her injuries by various doctors, physicians, and nurses in Ward county; that it was necessary to have the testimony of such witnesses as well as the X-ray photographs taken in Minot by persons residing in Minot; and that it would cause plaintiff a great deal of expense to have her witnesses go to Bowbells for the trial of the case. The court denied the motion for a change of venue. At the commencement of the trial plaintiff moved that all witnesses be excluded from the courtroom during the trial of the action, and the court made an order excluding the witnesses from the courtroom during the trial of the action except the witness testifying. Just before both parties rested the defendant called one I. C. Shong as witness, and the plaintiff objected to him testifying on the ground he had been in the courtroom all of the time of the trial and had thus violated the order of the court. The record in this matter is as follows:

“I. C. Shong being first duly sworn, testified as follows:

By Mr. Goss:

Mr. Sinkler: Now, if your honor please, this man has been in the court room all the time.

Mr. Goss: He has been in by the court's permission.

Mr. Sinkler: We object to him testifying on the ground that he has been in the court room all the time.

The court: Sustain the objection.

Mr. Goss: At this time I offer in evidence Exhibit 1.

Mr. Sinkler: No objection to Exhibit 1.”

Both parties then rested. (Exhibit No. 1 is an alleged statement of the plaintiff made to some employee of the defendant shortly after the accident and has no bearing on the errors alleged.) The trial resulted in a verdict for the plaintiff against the defendant in the sum of $1,900, and an order for judgment was made and judgment entered thereon.

The plaintiff moved for a new trial specifying as error the points raised on this appeal. The court denied a new trial, and the defendant appeals.

The specifications of error are three in number:

(1) That the court erred in denying the change of venue; (2) that the court erred in refusing to permit the witness I. C. Shong to testify; and (3) that the court erred in denying a new trial on account of the excessiveness of the verdict.

This action is not one which must be tried “in the county in which the subject of the action or some part thereof is situated,” or a case which “must be tried in the county where the cause or some part thereof arose,” as provided for in sections 7415 and 7416 of the Compiled Laws of 1913. This is an action brought against the defendant corporation alleged to be “organized and existing under and by virtue of the law of the state of North Dakota,” and a public carrier, and, under the provisions of section 4735 of the Code, “any person * * * claiming to be damaged by any railroad, railroad corporation or common carrier, * * * may bring suit in his * * * own behalf for the recovery of damages for which any such railroad * * * may be liable * * * in any court of this state of competent jurisdiction. * * *” Section 4735 of the Compiled Laws.

[1] The plaintiff therefore had a right to bring this action in any county in the state as she saw fit. It is not the claim of the defendant that the action is not commenced in the proper county. It is its claim there should be a change of venue for “the convenience of witnesses.” The defendant strenuously contends that bringing the former action in Burke county and dismissing it without prejudice has a bearing upon the good faith of the plaintiff in bringing the action in Ward county. It was immaterial where the former action was commenced. The burden of proof is upon the defendant to show that there should be a change of venue. See Curren v. Story, 41 N. D. 362, 170 N. W. 875;Kiley v. Meckler et al. (N. D.) 220 N. W. 926. It is not sufficient, however, to show that it would be more convenient for witnesses. The application must show that the ends of justice would be promoted by the change as well. See McConnon & Co. v. Sletten et al., 55 N. D. 388, 213 N. W. 483; Kiley v. Meckler et al., supra. The affidavit in support of the motion shows it would be more convenient for the defendant to have the case tried in Burke county. There is no showing that the ends of justice would be any better promoted in Burke county than in Ward county. The rebutting affidavits furnished by the plaintiff show that it would be for the convenience of her witnesses to have the case tried in Ward county. The appellant argues that the affidavit furnished by the plaintiff specified certain witnesses who were not called on the trial of the case. The fact that the development in the trial obviated the necessity for calling these witnesses has no bearing on the case. We must pass upon the application as it was presented to the court. The plaintiff had the right to choose whatever county she saw fit. She chose the one that would be most convenient for her witnesses. True, this would cause the defendant to bring on its own railroad a number of witnesses some 75 miles farther than it would otherwise do. We cannot say that this in itself was sufficient to require the court to grant the change of place, nor that the failure to do so was error. If the court granted the change of venue it certainly would inconvenience the plaintiff, and her doctors and nurses would have to be transported at her expense a distance of seventy-five miles. Most of the witnesses, including the doctors of the defendant, would be required to be transported over 25 miles in any event, and the bringing of the action in Ward county merely added about 75 miles to the transportation. There is no error shown in the refusal to grant the change...