Denbeigh v. Oregon-Washington Railroad & Navigation Co.

Citation23 Idaho 663,132 P. 112
PartiesFRANK E. DENBEIGH, Respondent, v. OREGON-WASHINGTON RAILROAD & NAVIGATION COMPANY, Appellant
Decision Date24 April 1913
CourtUnited States State Supreme Court of Idaho

NEGLIGENCE-INSTRUCTIONS-APPLICABLE TO THE FACTS OF THE CASE-VERDICT-NOT DISTURBED-DAMAGES-EXCESSIVE.

1. In an action for damages based upon negligence, it is irrelevant to prove that the plaintiff or defendant has on similar occasions been careful or negligent, or that either party has the reputation of being careful or negligent.

2. "In determining the question of negligence and contributory negligence in this case, the jury should take into consideration the place at which the accident occurred the nature of the surrounding country, the condition of the roadbed, the manner in which the train was being propelled the character of the use of that railroad track, the probability of pedestrians being on the track at that time and place, if any, and from all of the facts and circumstances determine whether or not the servants of the defendant in charge of the train exercised ordinary care and prudence in the management and operation of the train at the time and place mentioned, and whether the plaintiff was guilty of contributory negligence under the instructions covering the same." The foregoing instruction is approved as stating the law applicable to the facts of this case, and did not prejudice the jury.

3. "Notwithstanding the fact that the plaintiff has been guilty of some negligence in exposing his person to an injury at the hand of the defendant, yet if the defendant discovered the exposed situation of the plaintiff in time by the exercise of ordinary or reason- able care after so discovering it to have avoided injuring him and nevertheless failed to do so, the contributory negligence of the plaintiff does not bar a recovery of damages from the defendant. Where a person negligently walks upon a railroad track, if the engineer after noticing his exposed situation fails to give the proper signals or otherwise acts wilfully and recklessly, in consequence of which the person is killed or injured, the company shall be liable in damages." The foregoing instruction states the law applicable to the surrounding facts and circumstances of the present case as they are alleged in the pleadings and shown by the evidence.

4. Instruction No. 11 correctly states the law applicable to this case in express language, that if the jury finds from the evidence that after discovering plaintiff upon the track the servants of the defendant did not sound alarm signals either by whistle or the bell upon the engine, until it was too late for plaintiff to escape, such failure to so give the alarm signals was negligence.

5. While there is a conflict in the evidence as to the negligence of the appellant in not giving proper signals and exercising the diligence and care required under the circumstances after the signals had been given, after the engineer recognized that the respondent did not appreciate the signals given or the danger, yet there was testimony which raised an issue for the jury.

6. This court will not disturb the verdict of the jury on the ground that the weight of evidence is against the respondent neither should the court ignore evidence because negative in character.

7. The general rule in this state is, that this court on appeal will not disturb the verdict of a jury, unless the amount is so large as to suggest passion, prejudice or corruption on the part of the jury.

8. The correct rule of law governing the estimation of damages where the issues and facts are as stated in the pleadings and evidence in this case is as follows: "In estimating the damages, however, you may take into consideration the extent of the plaintiff's injuries, if any were suffered by her, the physical and mental pain and suffering which she has endured, if any there be, which was the natural and proximate result of such injuries, and also the pain and suffering which it is reasonable to infer that she will suffer in the future as the natural and proximate result of such injuries."

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action to recover damages for personal injuries. Judgment reduced and affirmed.

Judgment reduced to the sum of $ 11,510. Costs awarded to respondent.

L. R. Hamblen and Featherstone & Fox, for Appellant.

In giving instruction No. 8 requested by plaintiff, the court gave an instruction applicable to a case involving the doctrine of the "Last Clear Chance." In the case at bar this doctrine does not apply. (Neil v. Idaho & W. N. Ry. Co., 22 Idaho 74, 125 P. 331.)

The law contained in Instruction No. 11 has been sustained by this court in the Neil case supra, and in the case of Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91, and is the general rule in all cases of this kind. In refusing to give this instruction to the jury, the court was clearly in error.

The only theory upon which a recovery could be had, in view of the testimony in the case, was that it was the duty of the engineer to stop the train immediately upon seeing the man on the track ahead of him. (Neil v. Idaho & Wash. Northern Ry. Co., supra.)

John P. Gray, Therrett Towles and Frank M. McCarthy, for Respondent.

"When an act or omission of a defendant is proved, whether it is actionable negligence is to be determined by the character of the act or omission, and not by the defendant's character for care and caution." (Hays v. Millar, 77 Pa. 238, 18 Am. Rep. 445; Montgomery & W. P. R. Co. v. Edmonds, 41 Ala. 667; Central R. & Banking Co. v. Roach, 64 Ga. 635; Chicago & A. R. Co. v. O'Brien, 34 Ill.App. 155; Dunham v. Rackliff, 71 Me. 345; Maguire v. Middlesex R. Co., 115 Mass. 239; Boick v. Bissell, 80 Mich. 260, 45 N.W. 55; Miss. Cent. R. Co. v. Miller, 40 Miss. 45; Hayes v. St. Louis R. Co., 15 Mo.App. 584; Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Bryant v. Central Vermont R. Co., 56 Vt. 710; Christensen v. Union Trunk Line, 6 Wash. 75, 32 P. 1018; Young v. Crystal Ice Co., 83 Conn. 718, 76 A. 514; Towle v. Pacific Imp. Co., 98 Cal. 342, 33 P. 207; Spear v. United Railroads, 16 Cal.App. 637, 117 P. 956; Carr v. Stern, 17 Cal.App. 397, 120 P. 39; Harriman v. Pullman Palace-Car Co., 85 F. 353, 29 C. C. A. 194; Jones on Evidence, 2d ed., sec. 148; Greenleaf on Evidence, 14th ed., sec. 54, p. 82; 1 Elliott on Evidence, sec. 187, p. 269.)

Instruction No. 6 was eminently fair. It is substantially the same as Instruction No. 10, approved by this court in the case of Wheeler v. Oregon R. R. etc. Co., 16 Idaho 375-406, 102 P. 347. (See, also, Anderson v. Great Northern Ry. Co., 15 Idaho 513-525, 99 P. 91; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.)

This same instruction, except as it was applicable to the particular facts of those cases, was approved also in both the case of Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090, and Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080.

Instruction No. 8 involved the doctrine of the "Last Clear Chance," which has been approved by this court in Pilmer v. Boise Traction Co., Ltd., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254, and Anderson v. Great Northern Ry. Co., supra. (1 Thompson's Comm. on the Law of Negligence, sec. 238; Kelley v. Ohio River R. Co., 58 W.Va. 216, 52 S.E. 520, 2 L. R. A., N. S., 898.)

Under the authority of the case of Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897, this case was properly submitted to the jury.

The law is the same in the other jurisdictions. (Kelley v. Ohio River Co., 58 W.Va. 216, 52 S.E. 520, 2 L. R. A., N. S., 898; Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63; Raby v. Missouri P. Ry. Co., 160 Mo.App. 388, 140 S.W. 913; Missouri K. & T. Ry. Co. of Texas v. Milburn (Tex. Civ. App.), 142 S.W. 626; International & G. N. R. Co. v. Woodward, 26 Tex. Civ. App. 389, 63 S.W. 1051; Ft. Worth & D. C. R. Co. v. Longino, 54 Tex. Civ. App. 87, 118 S.W. 198; Sanders v. Southern Ry., 90 S.C. 331, 73 S.E. 356.) Denbeigh had the right to rely upon the railroad company performing its statutory duty to give signals for the public crossing just east of where he was standing. (Chesapeake & O. R. R. Co. v. Young's Admr., 146 Ky. 317, 142 S.W. 709; Cahill v. Railroad Co., 92 Ky. 345, 18 S.W. 2.)

Under the decision in Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090, the award here is absolutely reasonable, and in no sense excessive. There is nothing in the record to show or to indicate prejudice or passion. (Lee v. Southern P. R. Co., 101 Cal. 121, 35 P. 572; Coleman v. Southwick, 9 Johns. (N. Y.) 45, 6 Am. Dec. 253; Davis v. Holy Terror Min. Co., 20 S.D. 399, 107 N.W. 374; Reeks v. Seattle Electric Co., 54 Wash. 609, 104 P. 126.)

The question was left to the sound sense and sober judgment of the jury, and this court may not interfere unless passion, prejudice or corruption has intervened or there is no evidence to support the verdict. (Burch v. Southern P. Co., 32 Nev. 75, Ann. Cas. 1912B, 1166, 104 P. 229; Solen v. Railway Co., 13 Nev. 106; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; Howland v. Oakland Con. Co., 110 Cal. 523, 42 P. 983; Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744; Horn v. Boise City Canal Co., 7 Idaho 645, 65 P. 145.)

The amount is not excessive, if we consider what the courts have allowed, and in the following cases courts have sustained verdicts as great or greater than this: San Antonio etc R. Co. v. Connell, 27 Tex. Civ. App. 533, 66 S.W. 246; Engler v. Western Union Tel. Co., 69 F. 185; Western Union Tel. Co. v. Engler, 75 F. 102, 21 C. C. A. 246; Texarkana etc. R. Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S.W. 375; The Fullerton, 167 F. 1, 92...

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