Duluth, M. & N. Ry. Co. v. McCarthy
| Decision Date | 22 May 1931 |
| Docket Number | No. 28415.,28415. |
| Citation | 236 N.W. 766,183 Minn. 414 |
| Parties | DULUTH, M. & N. RY. CO. v. McCARTHY. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Martin Hughes, Judge.
Action by the Duluth, Missabe & Northern Railway Company against J. A. McCarthy. From a judgment for the plaintiff, after a verdict in its favor, and an order denying defendant a new trial, defendant appeals.
Judgment affirmed.
Naughtin & Henley, of Hibbing, and Jenswold, Jenswold & Dahle, of Duluth, for appellant.
Abbott, MacPherran, Dancer, Gilbert & Doan and Dennis F. Donovan, all of Duluth, for respondent.
After verdict for plaintiff and an order denying a new trial, defendant appeals from the judgment.
July 14, 1928, while one Hampton was his guest and passenger, defendant, driving his automobile, met one of plaintiff's freight trains on a crossing in the village of Hibbing. Details are unimportant, because for defendant it is frankly conceded that he was negligent. Negligence is admitted by plaintiff also. Its train was traveling at a speed of twelve miles an hour or more, whereas anything over ten miles was prohibited by an ordinance of the village.
Hampton, a mechanic, in good health, and with earning power unimpaired, was painfully and permanently injured. He promptly sued the parties to this action for the resulting damage. That case was settled by the present plaintiff for $6,500, which it paid to Hampton in full discharge of his right of action. Defendant, as well as plaintiff, was thereby released from liability to Hampton. Before making the settlement, plaintiff demanded of defendant that he make contribution, but he refused. This suit followed.
The jury was instructed that both plaintiff and defendant were negligent, and that the negligence of each was a proximate cause of the injury to Hampton. The only question submitted was whether "the settlement * * * was a fair and just and provident settlement." If it was, the charge continued, "then the plaintiff in this case is entitled to recover from the defendant the sum of $3,250, one-half of the $6,500, with interest." On that basis, the jury found for plaintiff, although they had been instructed also, if they considered that plaintiff had paid Hampton more than was "fair, just and provident," that they should allow only one-half of such sum as they found would have been proper.
Both parties moved for directed verdict. These motions were denied, but resulted in argument as to the precise question or questions for the jury. Neither then nor at any other time, by pleading or otherwise, was it averred, for defendant, that Hampton had been guilty of contributory negligence. Neither was it suggested that defendant was entitled to have the jury determine whether plaintiff's violation of the ordinance was willful, or its want of care in any other way different in legal quality or results from that of defendant. Defendant moved for directed verdict upon the ground "that there is no case proven in law to justify a verdict," the court being asked in explanation The intention plainly was to present, as an obstacle to plaintiff's recovery, only the proposition, hereinafter considered, that, plaintiff having voluntarily settled with Hampton, without the issues as between the joint tort-feasors and Hampton being first determined by verdict and judgment, it has no standing to claim contribution.
1. Again we must caution about the necessity for confining the issues on appeal to the field fairly covered by the theory upon which the case was tried and decided below. Our practice offers repeated opportunity for making the record reflect any issue of sufficient importance to be worthy subject-matter for an assignment of error on appeal. These opportunities are presented first by the pleadings, then by the trial, and finally the motion for new trial. Ordinarily, implication alone will not serve to bring within the field of review anything which does not appear expressly to have been presented below. With so much opportunity for express record, there should be no occasion for resort to mere implication. Our practice (Mason's Minn. Stats. 1927, § 9327) relieves counsel from the necessity of taking exceptions. But, if they take advantage of that privilege, they must make the specifications of error which are a part of their motion for a new trial pointed and specific indicia of the propositions upon which they depend to establish error.
Where, as here, issues attempted to be raised on appeal do not appear from the pleadings, evidence, rulings on evidence, requests for instructions, or other proceedings at the trial, or by the motion for new trial, to have been presented to the lower court, it is too late to attempt for the first time to bring them into the case here on appeal. Schlecht v. Schlecht, 168 Minn. 168, 209 N. W. 883; Dunnell, Minn. Dig. (2d Ed.) § 384. So we decline consideration of the argument for defendant on the supposed contributory negligence of Hampton, or that the negligence of plaintiff was willful, intentional, in violation of law, or otherwise anything different in legal quality or results from that of defendant. The case must rest here on the questions litigated below.
Long ago this state adopted (Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320), and more recently has confirmed (...
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