Gila Valley, G. & N. Ry. Co. v. Lyon

• Decision Date: 30 March 1905
• Docket Number: Civil 857
• Citation: 9 Ariz. 218,80 P. 337
• Parties: GILA VALLEY, GLOBE AND NORTHERN RAILWAY COMPANY, Defendant and Appellant, v. A. J. LYON, Plaintiff and Appellee
• Court: Arizona Supreme Court

80 P. 337

9 Ariz. 218

GILA VALLEY, GLOBE AND NORTHERN RAILWAY COMPANY, Defendant and Appellant, v. A. J. LYON, Plaintiff and Appellee

Civil No. 857

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Gila. Edward Kent, Judge. Affirmed.

Affirmed. Opinion, 203 U.S. 465, 51 L.Ed. 276.

The facts are stated in the opinion.

Frank W. Burnett, for Appellant.

Falvey & Davis, and George R. Hill, for Appellee.

OPINION

SLOAN, J.

-- This is the second appeal in this case. Upon the first appeal the judgment rendered in the court below in favor of the appellee was reversed, and a new trial granted upon the ground of error in the giving of an erroneous instruction and in refusing to give a proper instruction. Gila Valley etc Co. v. Lyon, 8 Ariz. 118, 71 P. 957. Upon a retrial of the cause a verdict was again found by the jury in favor of the appellee, and a judgment entered thereon. From the ruling of the court denying its motion for a new trial and from the judgment appellant brings this appeal.

The first error assigned is based upon the refusal of the trial court to instruct the jury, at the conclusion of the evidence, to return a verdict for the defendant upon the ground, as stated in the motion made in that behalf, that the evidence failed to make out a case of negligence on the part of the defendant railroad company. The evidence adduced upon the second trial was substantially the same as upon the first trial. We held upon the first appeal that this evidence was sufficient to warrant the submission of the question of negligence on the part of the railroad company to the jury. It is settled law that all rulings made by the appellate court upon a first appeal become the law of the case, and are conclusive upon any subsequent appeal. Roberts v Cooper, 20 How. 467, 15 L.Ed. 969; Clark v. Keith, 106 U.S. 464, 1 S.Ct. 568, 27 L.Ed. 302; United States v. Neustra Senora de Regla, 108 U.S. 92, 2 S.Ct. 287, 27 L.Ed. 662.

Counsel for the appellant, before the argument of the case, requested the trial court to submit certain special interrogatories to the jury for their answer. The court expressed a willingness to do this, but found exception to the wording of one of the interrogatories submitted, and suggested an amendment thereto. Counsel declined to consent to any amendment to the interrogatory, whereupon the court refused to submit any special question to the jury. This ruling is assigned as error. At common law the practice of submitting special interrogatories to a jury was not allowed, and the finding of the jury was restricted to a general verdict or a special verdict, as it might elect. In certain of the older states a practice originated at an early day of the court submitting certain questions to the jury to be answered by them as supplementary to a general verdict. In many of the states this practice has been incorporated into the statutes. As a rule, these, unless mandatory in terms, are construed as permitting the practice, but leaving it to the sound discretion of the trial court whether it be followed in any particular case. Paragraph 1427, of the Revised Statutes of 1901 reads: "In all cases, whether law or chancery, where more than one material issue of fact is joined, interrogatories may, under proper instructions, be submitted to the jury by the court in writing," etc. A cursory reading of this statute discloses that it is directory, and not mandatory, and that it leaves the matter of submitting the interrogatories in any case to the sound discretion of the court. Such has been the ruling of this court. Taggart Mercantile Co. v. Clack, 8 Ariz. 295, 71 P. 925.

Exception is taken to the oral charge of the court, in that it does not follow the law as laid down by us upon the first appeal. That part of the charge of the court complained of reads as follows: "If the accident causing the death was brought about by the negligence of the dead man himself, or his negligence contributed thereto, then you cannot, gentlemen find a verdict against this defendant company. If the accident was brought about solely by the negligence of the conductor of the train, a fellow-servant, the defendant company is not responsible in damages, and you cannot find a verdict against the defendant in this case. Negligence, for the purpose of this case, I will define to be a failure to use such care as a person of ordinary prudence would use under like circumstances. Now, in this case, the conductor of the train was a fellow-servant of the man who was killed, and, if the accident was brought about solely by the negligence of the conductor of the train, then the defendant company is not liable; or if the accident was brought about by the negligence of the conductor and the negligence of the man who was killed, the defendant company is not liable. If, however, the accident was caused by a failure of the defendant company to provide a reasonably safe place to perform the work in which the man who was killed was engaged, then the defendant company is liable in damages for the death, if it was negligent in not providing such safe place. The fundamental question, therefore, for you to determine in this case, is, What was the cause of this accident -- what brought it about? If you find that this accident was caused solely by the action of the conductor in the method which he employed in putting cars on the spur at the time in question, then you should find a verdict for the defendant company, and you should not award any damages to the plaintiff in this case; or if you should find that the dead man has, through his own negligence, brought about this accident, or contributed to it, then you should find for the defendant, and you should not award any damages in this case. On the other hand, if you find that the defendant company was negligent in not providing a reasonably safe place for the performance of the work, you should find for the plaintiff, and award her damages, provided that the negligence of the defendant in not providing such safe place was the cause of the accident, or contributed to the accident. To find for the plaintiff, it is not enough that you should find that the premises were unsafe, or that the defendant company was negligent, in that respect, in not providing a safe place. You must also find that the place was unsafe, and that the accident was brought about or contributed to by reason of that unsafe place. That is, if you should find that the act of the conductor was the sole, or if you should find that it was the proximate or the procuring, cause of the accident, then you should not award damages; but if you find that the accident was caused by the acts of the conductor and also by the negligence of the defendant company in not providing a...