Finney v. Northern Pac. R. Co.
| Decision Date | 30 June 1883 |
| Citation | 16 N.W. 500,3 Dakota 270 |
| Parties | Finney v. Northern Pacific R. Co. |
| Court | North Dakota Supreme Court |
Appeal from the district court of Cass county.
H. F Miller, for respondent. W. P. Clough, for appellant.
This action was brought by the plaintiff to recover damages claimed to have been sustained by him while being thrown out of a freight car of the defendant by its servants. There was a trial by jury, and a verdict for the plaintiff. A motion for a new trial was made and overruled, and a judgment entered for the plaintiff, from which this appeal was taken. The assignments of error were these: (1) The ruling of the court by which counsel was permitted to cross-examine Fields as to whether he was not then under indictment for injuring the plaintiff, and for the crime of maiming. (2) That part of the charge of the court which is in the following language "The defendant's agent is bound to use due care and prudence in expelling passengers from its cars, and although the plaintiff was a trespasser at the time of the accident and was wrongfully on the cars at the time, the defendant would be liable for damages arising from the wanton and malicious act of its servants, while they are executing what they supposed to be the order of the company, even though the order did not in fact contemplate such acts." (3) The denial by the court of defendant's motion for a new trial, based among other things upon the ground that the evidence did not justify the verdict. The conclusion at which we have arrived renders it unnecessary in determining this case to consider only one of the assignments of error, (the third:) Does the evidence justify the verdict? It appears from the certificate of the judge who tried the case below that all the evidence adduced on the trial was brought up in the record.
The plaintiff, James Finney, testified as follows:
*** I went into the box car, and I took my coat off and my hat, and laid it on the corner of the car--box car--the west end of the car; laid my coat down, and rolled it up and put it under my head, and took my shoes off. I rolled my coat up and put it under my head in the car. It was a very warm day got in to have a little sleep, and a little rest; was tired. I put my coat under my head and took my shoes off; and I was in there about two hours, and I seen two men come in the car. I didn't see them; I was asleep at the time; they came in and gave me a kick in the feet and wakened me up. I recognized one of them as having light chin whiskers, and a light straw hat on. He says to me: "Get out of this car." I says: "All right, sir; just as soon as I put my shoes on." I asked him if I could put my shoes on, and he studied awhile. While he was studying that way I got one shoe on my foot. Just as I got one shoe on, he grabbed me around the legs and dragged me on my back.
Question. How far? Answer. Over to the car door; there I was getting up on my knees. Just as I got up on my knees--just about the time I got straightened in front of him--I got a poke of the iron bar in my eye.
Q. You say just about the time you got straightened up, you got a poke of the iron bar in your eye? A. Yes, sir; just about the time I got straightened up--wasn't hardly straightened up at the time I got the poke--well, at the time I got the poke I got shoved out of the car; with his left hand he shoved me out of the car, and I fell down on the ground on my back.
Q. What did he do, Fields, then, after that? A. He jumped out on the other side of the car. There was another man with this one; two of them came in the car, and they shoved me out on the other. They shoved me out on the south side, and they jumped out on the north side and ran away.
Q. You say you recognized one of these men in there as having chin whiskers and a mustache? A. He had a mustache and light chin whiskers down here. He had a straw hat on.
Q. State if you knew at the time what his name was? A. I heard some of the boys talking about him before this happened.
Q. Have you since learned what the name of the man was that you identified at that time? A. Yes, sir.
Q. What was his name? A. Dick Fields, or Richard Fields, rather.
Q. Do you know whether he was in charge of the company's cars and property there? A. Yes, sir.
Q. What did you do after you got knocked down on the ground? A. I laid there about half an hour, until I regained my senses. I didn't know just what the nature of the thing was. I thought my eye was knocked out; so I told a gentleman who was going by if he wouldn't go in the car and throw out my coat and one shoe. He got in the car and threw out one shoe for me, and my coat and my hat. I sat there about 10 minutes, I should judge; then I regained my senses, and I started up for the city here. Came up to Dr. Darrow's office, and Dr. Darrow wasn't in at the time; he was away. I laid down outside.
Q. Laid down outside, where? A. Outside of the bank building over there.
Q. Of what bank? A. The First National Bank, I believe. I laid down there a little while, and somebody went for Dr. Darrow. Dr. Darrow came round and examined my eye, and sent me to the county hospital here, in Fargo.
Q. Now state if you lost that eye from the result of that accident. A. I did, sir.
Q. From the result of that blow? A. From the result of that blow. ***
Q. When Mr. Fields ordered you out of the car did you try to get out as soon as you could? A. Yes, sir; I told him I would just as soon I put my shoes on, and he would not give me time to put one shoe on.
Q. You told him you would as soon as you could get your shoes on? A. Yes, sir; I told him I would just as I could put my shoes on. He wouldn't give me time to put my shoes on. Grabbed me by the legs and dragged me over to the car door. Only had time to put one shoe on.
Q. Did you make any resistance--refuse to leave the car? A. No, sir; not anything whatever.
Q. Was you going out as rapidly as you could? A. Yes, sir; just as fast as I could I was going out of the car.
Q. State if, from the result of that blow, you have lost your eye? A. Yes, sir; I have lost my eye for my natural day, I suppose. My eye is gone.
CROSS-EXAMINATION.
Q. What time of day was it you went into that car, Mr. Finney? A. I should think, sir, that it was about half past 10.
Q. About half past 10? A. About 10 o'clock or half past 10 in the forenoon, in the day-time.
Q. What time was it they came into the car and woke you up? A. I should judge, sir, it was about half past 12 or 1 o'clock.
Q. You went into that car to take a sleep, you say? A. Yes, sir.
Q. Had you had a sleep the night before? A. No, sir; I didn't sleep much the night before.
Q. Where were you? A. I was around Fargo. ***
Q. Had you no regular boarding place, then? A. No, sir. ***
Q. Had you no regular room any where to sleep? A. No, sir; I hadn't been here long. ***
Q. Had you stopped at the same place any two nights? A. I stopped there at the Bramble House, I think it was, one night.
Q. What night--the first night you came? A. I think so. Yes, sir.
Q. Where did you stop the next night? A. No, sir; I made a mistake. The first night I didn't sleep any at all.
Q. Where were you? A. I was going round Fargo and Moorhead. ***
Q. Had you been drinking pretty freely that night, also? A. Yes, sir; was drinking a little before I went into the car.
Q. Pretty much intoxicated, were you not, when you went into the car? A. Well, not so very bad. It was more from the loss of sleep than anything else. ***
Q. Do you say there was two men came into the car together? A. Yes, sir; two men.
Q. Who was the other man besides Mr. Fields? Do you know? A. I could not see him distinctly at the time. I knew there was two men came into the car.
Q. Did they come in after you was awake? A. No, sir; they came in before I was waked up.
Q. When you woke up you saw them both in the car? A. Yes, sir; they came up and waked me up.
Q. You say that you had your eye injured by a bar in the hands of Mr. Fields. Did you see that bar in his hands? A. No, sir; I didn't see anything. I don't know what it was that I was struck with.
Q. Did you see anything in his hands when you first woke up? A. No, sir.
Q. Did he have anything in his hand when you first saw him? A. I didn't see anything at all, sir. He wouldn't give me time to put my shoes on.
Q. Well, you woke up and sat up in the corner of the car first, did you? A. Yes, sir; sat up and looked at him, and asked him if I could put my shoes on.
Q. Was he standing up very close to you? A. Yes, sir; they came on one behind the other.
Q. You didn't see anything in the hands of Mr. Fields, or any one else? Didn't see them have anything in their hands? A. No, sir; I didn't.
Q. They waited long enough, you say, for you to put on one shoe? A. Yes, sir.
Q. Then he seized hold of your legs, you say? A. Yes, sir.
Q. Did he use both hands in taking hold? A. Yes, sir; I think he did.
Q. Did both of them seize hold of you, or only one? A. Only one.
Q. What was the other doing? A. He kept right behind this other fellow all the time.
Q. Kept right behind him? A. Yes, sir.
Q. Seized hold of you with both hands? A. Yes, sir.
Q. You didn't see him have anything in his hand at that time? A. No, sir; I didn't. I thought it was a knife he had in his hand--something--the blow came so quick.
Q. Did you see him when he seized hold of you, as you say,--did he lay anything down on the floor? A. Not that I seen.
Q. You did not see him lay anything down, or pick anything up? A. I didn't see him lay anything down on the car after he woke me up.
Q. You didn't see anything at all in his hands? A. I didn't see anything. No, sir.
Q. After you say he dragged you towards the door by the feet, he...
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Gilbert Mfg. Co. v. Bryan
... ... and justice has not been done, a new trial should be granted ... Finney v. Northern P. R. Co., 3 Dakota 270, 16 N.W ... 500; Barrett v. Wheeler, 71 Iowa 662, 33 N.W ... ...