Higley v. Gilmer

• Decision Date: 31 January 1878
• Citation: 3 Mont. 90
• Parties: HIGLEY, respondent, v. GILMER ET AL., appellants.
• Court: Montana Supreme Court

3 Mont. 90

HIGLEY, respondent,

v.GILMER ET AL., appellants.

Supreme Court of the Territory of Montana.

January Term, 1878.

Appeal from Third District, Lewis and Clarke County.

THIS action was brought by plaintiff to recover damages for injuries received by the upsetting of defendants' stage coach. The action was tried at an adjourned session of the March term, 1877, of the third district court for Lewis and Clarke county. The jury gave verdict for plaintiff for $5,000 damages, from which verdict and judgment thereon this appeal was brought.

E. W. TOOLE, and SANDERS & CULLEN, for appellants.

1. By order of supreme court, which is in the nature of legislation, a term of the district court for the third district was fixed to be held in Lewis and Clarke county, in March, 1877, and for Meagher county in same district, in April, 1877, and the judge had no power to adjourn the former till after the latter, and the proceedings in this trial held at such adjourned term were without sanction of law. See Freeman on Judgments, § 121; Wicks v. Ludwig, 9 Cal. 175;Norwood v. Kenfield, 34 Id. 333;Smith v. Chichester, 1 Cal. 409.

2. Complaint is defective, for that it contains no allegation that the injury occurred without plaintiff's fault, and that he did not contribute to the injury complained of. There was error in overruling defendants' demurrer. 17 Ind. 102;101 Mass. 466;105 Id. 77;16 Ill. 558;29 Iowa, 531;32 Id. 176;67 N. C. 122;12 Pick. 177;1 Williams (Vt.), 443;19 Conn. 507;18 Iowa, 280;43 Me. 492;25 Mich. 274;7 Wis. 425-527.

3. The court erred in striking out part of defendants' answer which alleged that plaintiff was a trespasser and not a passenger. Only ordinary degree of care is required toward trespassers. One traveling on a free pass is not entitled to same degree of care as a passenger who pays. Chicago Legal News, Aug. 4, 1877, case 37; 12 East, 89; 5 Hurlst. & Norm. 147; Story on Bailments, p. 591; Angell on Carriers, p. 386, §§ 461-2, 434 to 442.

The case was brought for breach of contract, and pleadings and proof should have been made to conform to such issue. Central Law Journal, October 19, 1877, Klanse v. St. Louis R.; Chicago Legal News, Nov. 14, 1877, p. 78, Stone v. C. & N. W. R. R. Co.; Angell on Carriers, pp. 371, 439 to 443; 3 Barr. (Pa.) 342; 1 Chitty on Pleading (5th ed.), 334.

There was error in permitting proof of intoxication of driver, and of witness' opinions thereto. Angell on Carriers, p. 523, §§ 450, 582; McKinney v. Neil, 1 McLean, 540.

The court erred in not allowing defendants to cross-examine witness George Piatt, and show by him that the team used, though not the regular team, was equally as good.

The court erred further in not instructing the jury as asked by defendants respecting the duty of passengers in the matter of furnishing the driver intoxicants.

It erred also in not instructing the jury, as requested, that a passenger was bound to exercise diligence in avoiding peril; and in failing to instruct the jury that it was the driver's duty to act on his own judgment and not on that of the passenger; and in instructing the jury that common carriers of passengers were “liable for the smallest neglect of their drivers,” without qualification.

The court erred, too, in instructing the jury that the driver must be “familiar with the road from having made numerous trips over it, both in the daytime and night”; and in charging them further that it was immaterial to inquire whether plaintiff rode on the outside or inside of the coach. The burden rested on plaintiff not only to prove the injury, but that it occurred without his fault, and the court's instructions on this point were erroneous and tended to mislead the jury. See 1 Greenl. Ev. 48; 6 Cush. 364;5 Id. 305;3 Gray, 463;13 Pick. 69-76; Addison on Torts, 580 et seq.

It was error to allow evidence of the overturning of coach by this driver on other occasions. 60 N. Y. 279;44 Id. 465;45 Barb. 299;18 N. Y. 408;115 Mass. 240;118 Id. 420.

The court's instructions based on such evidence were also erroneous; also the instruction that it was the driver's duty to inform a passenger when approaching a dangerous place; also as to whether this driver was intoxicated at other times when his coach was turned over.

The court erred in instructing the jury as to the matter of the plaintiff furnishing the driver intoxicants; in allowing them to inquire how much of the intoxication was caused by the liquors furnished by the plaintiff. Such requirements are impracticable, misleading and impossible.

The court is referred to the following additional authorities: 2 McLean, 159, 164, 169;17 N. Y. 131;50 Barb. 39; 18 U. S. Dig. 101; 20 Id. 135, § 89; Story on Bailm. 561, 591; Bacon's Abr., note c, p. 125; McCully v. Clark, 40 Penn. 399; Whart. on Neg. 421-424; 101 Mass. 455-466;20 N. Y. 65;8 Allen, 227;14 Id. 429;54 N. Y. 468;105 Mass. 77, 403;46 Mo. 456;53 Id. 366; Central Law Journal, Oct. 1 1875; Chicago Legal News, Nov. 11, 1876; Aug. 4, 1877; Albany Law Journal, Dec. 2, 1876, p. 380; 37 Ill. 384.CHUMASERO & CHADWICK and SHOBER & LOWRY, for respondent.

1. The objection of appellants that the trial of this case in the court below was a nullity, because held at an adjourned term of the court, rests solely upon California decisions under a special statute, and are inapplicable elsewhere.

The general rule of law is stated by Chief Justice MARSHALL in the case of “““ The Mechanics' Bank of Alexandria v. Withers, 6 Wheat. 106 (5 Curtis, 24). This is the rule wherever not limited by statute. Sawyer v. Bryson, 10 Kans. 199;Casily v. State, 32 Ind. 69;Springbrook v. Road, 64 Penn. 451;Smith v. Smith, 17 Ind. 75;Conrad v. Johnson, 20 Ind. 421;Commonwealth v. Justices of Court of Sessions, 5 Mass. 435;People v. Northrup, 50 Barb. 147;Horton & Haile v. Miller, 38 Penn. 270.

2. It is not necessary for complaint to aver that the accident complained of occurred without fault or negligence on part of plaintiff. It is for the defense to prove such fact if true. Authorities cited by appellants do not sustain their position. For sufficiency of complaint, see Abbott's Forms, vol. 1, No. 506 et seq., p. 414 and notes; Ware v. Gay, 11 Pick. 110-111;Richards v. Westcott, 2 Bosw. 589; Wolf v. Supervisors of Richmond Co., 19 How. Pr. 371.

3. The averments of complaint were sufficient to admit evidence of any specific fact which would constitute negligence about their servants, and the equipment and management of the coach on this particular trip. Ware v. Gay, 11 Pick. 106;The Ind., Pittsburg & Cleveland R. R. Co. v. Taffe, 11 Ind. 458;Same v. Keeley's Admr., 23 Id. 133; Eldridge v. The Long Island R. R. Co., 1 Sandf. 89; Oldfield, Admr., v. N. Y. & Har. R. R. Co., 14 N. Y.

The English authorities are still more uniform in the same direction.

4. It was not error in the court below in striking out that portion of appellants' answer, which set up that respondent was a trespasser on the coach, nor in the rulings of the court in excluding testimony thereon. Whart. on Neg., § 354 et seq., and authorities cited. See, also, Chi., Col. & Ind. Cent. R. R. Co. v. Powell, 40 Ind. 37;Phil. & Reading R. R. Co. v. Derby, 14 How. (U. S.) 483;Wilton v. Middlesex R. R. Co., 107 Mass. 108;Nolton v. Western R. R. Co., 15 N. Y. 444;Norris v. Litchfield, 35 N. H. 271;Robinson v. Cone, 22 Vt. 213;Trow v. R. R. Co., 24 Id. 487; Hilliard on Torts (2d ed.), 160; Daley v. Norwich & Wor. R. R. Co., 26 Conn. 591;Isbell v. N. Y. &. N. H. R. R. Co., 27 Id. 398;Brown v. Lyon, 31 Penn. 510;C. C. & C. R. R. v. Terry, 8 Ohio, 570; Redf. on Law of Carriers, 274 and notes; Brewster v. Forrester, 11 East, 160.

The same law applies to stage coaches as to railroads. See Angell on Carriers, § 538.

5. There was no error in refusing appellants to cross-examine witness Piatt, on matters not brought out in direct examination. Matters of defense belonged to appellants' case.

6. There was no error in refusing the instruction asked by appellants. All that was in law applicable was substantially given. Com. v. Costley, 118 Mass. 25, and authorities cited; 30 Cal. 448.

7. It was not error to instruct the jury that the driver must be familiar with the road. 3 Bing. 321, cited in 2 Chitty's Pl. 361, and note k. Story on Bailm., §§ 592-3, indorses the above decision of Chief Justice BEST. In Ryan v. Gilmer et al., 2 Mont. 517, Justice BLAKE cites and approves Ingalls v. Bills, 9 Metc. 1, as to care and diligence required. See, also, Fairchild v. Cal. Stage Co., 13 Cal. 605. See, further, Shearm. & Redf. on Neg., § 266, and cases cited in Ryan v. Gilmer et al., 2 Mont. 517.

8. As to burden of proof, and negligence being presumed from the overturning of the coach, the following authorities are cited: 2 Mont. 517;13 Cal. 605;Maury v. Talmadge, 2 McLean, 161-6;Stokes v. Saltonstall, 13 Peters, 190;Boyce v. Cal. Stage Co., 25 Cal. 467;Curtis v. R. & S. R. R. Co., 18 N. Y. 542;21 Conn. 245; Shearm. & Redf. on Neg. 329-30; Whart. on Neg., §§ 627 and 661, and notes; 109 Mass. 398.

9. On the matter of contributory negligence, appellants had no ground to complain of the rulings or instructions of the court. 18 Cal. 351-357;24 Barb. 276;37 Cal. 409; Shearm. & Redf. on Neg., §§ 32-37; Whart. on Neg., § 301 et seq. 10. The court below did not err in admitting testimony as to this driver having overturned the coach before on same evening as well as when driving on other roads, under the limitations made by the court. Whart. on Ev., §§ 41-3, and authorities cited; G. T. R. R. Co. v. Richardson et al., 1 Otto, 470;42 Vt. 456, and cases cited; 14 N. Y. 218, and cases cited.

11. As to skill in assorted liquors and their varied and combined effects, much is conceded to the superior information and experience of appellants. The record sufficiently informs the court whether any error of ruling occurred to be matter of complaint.

KNOWLES, J.

The appellants are common carriers of passengers. The respondent was injured by the...