Hobson v. New Mexico & Arizona Railroad Co.

• Decision Date: 02 August 1886
• Docket Number: Civil 148
• Parties: JAMES HOBSON, Plaintiff and Respondent, v. THE NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellant
• Court: Arizona Supreme Court

11 P. 545

2 Ariz. 171

JAMES HOBSON, Plaintiff and Respondent, v. THE NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellant

Civil No. 148

Supreme Court of Arizona

August 2, 1886

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Cochise.

Affirmed.

Haynes & Stiles, James Hagerman, and Sumner Howard, for Appellant.

Goodrich & Smith, for Respondent.

Porter J. Barnes, J., concurs. Shields, C. J., dissenting.

OPINION

The facts are stated in the opinion.

PORTER J.

Before entering into the merits of this case it is necessary to dispose of some preliminary questions. The defendant appeared specially, and moved to set aside the service of summons because not made upon the "president, or other head of the corporation, secretary, cashier, or managing agent thereof, or to any lawful agent appointed for that purpose or any director or stockholder, as required by our statute." The return showed service upon J. H. Scott, agent of defendant. The affidavit of E. B. Pomeroy, the duly-appointed, acting, and lawful agent, stated that said Scott was not the agent. The transcript does not show any order made on said motion. Therefore, for aught we know, the defendant may have abandoned his motion, and made a voluntary appearance. Comp. Laws, 414. The defendant filed a demurrer, setting forth "not waiving, nor intending to waive, its rights to be heard on the motion already noticed, and now pending, to vacate the summons," etc. It may have been waived on the overruling the demurrer. An answer was filed after demurrer was overruled, and no mention there made of special appearance. The party having answered, and having had his day in court, should not be allowed to reverse all the proceedings because of this irregularity of service. Our statute says: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the party, and no judgment shall be reversed or affected by reason of such error or defect." Comp. Laws, 2507. "It is a general rule, now prevailing in the courts, that whereever and whenever substantial justice is secured, a mere technical error, which is harmless in its character, and which has worked no injury, will not be permitted to defeat or annul the final conclusion or consummation of judicial proceedings." Dyas v. Keaten, 3 Mont. 495; Sweeney v. Schultes, 19 Nev. 53, 6 P. 45.

At the time of the institution of this suit (March 12, 1883), a statute had been passed (on the eighth of said month and year) requiring plaintiff, in every action sounding in tort, or for any interest in real estate, not evidenced by writing, at the time of the commencement of the same, to file a bond with the clerk to the effect that if he fails to prosecute to final judgment, or dismisses, that he will pay all damages defendant may suffer, together with reasonable counsel fees and costs. No specified amount was required. This improvident act was the last one of the legislature of 1883, and was repealed among the first of the succeeding legislature. We think it of very doubtful validity, as being special in its nature. The court permitted plaintiff to file a bond which accomplished all the purposes required by the act, and we see no error in it.

The motion for continuance on account of the absence of witnesses was properly overruled, inasmuch as plaintiff admitted that the witnesses, if present, would testify to the facts stated in the affidavit. See Comp. Laws, c. 48, p. 433, § 160.

In November, 1881, the defendant was engaged in the construction of its railroad between Benson and Contention, in the county of Cochise. The plaintiff was employed by the defendant to drive a team, hauling and distributing ties from the end of the track. The ties were taken to the end of the track by an engine, and there unloaded and distributed by teams, one of which was driven by plaintiff to the places needed to extend the track. Plaintiff was employed by the month to drive this team of defendant, at $ 35 per month, and board. A large number of men were employed by defendant at the same time in the construction of the road, and all were boarded by defendant on boarding cars, which at that time were upon a side track or switch at Benson. Several miles of the track had been laid. At first, and for a number of days, the teams were driven back to dinner, but as the line was extended, by orders of defendant's supervisors, the plaintiff went back to dinner upon the empty train, upon which went all the workmen engaged in the construction of the road. The plaintiff had thus been going to dinner two or three times. While the men were at dinner the empty cars would be "side tracked," and other cars which had been loaded would be "made up" into a train to carry other material of different kinds to the end of the track, and on this loaded train the men were sent to their work. The dining cars were on a side track. Attached to the locomotive was a flat car, upon which were water-tanks, held on the car by two large wooden cleats nailed to the floor of the car, leaving a space at the end of the car of three or four feet. The loaded train was "backed" or "pushed" from the material yard to the end of the track, and, returning the cars would be at the head of the train.

The plaintiff and some others got on the water car before it became attached to the loaded cars standing on the track. The plaintiff and another man got upon that end which, when backed down, would strike the other cars. He says that after dinner the whistle blew, which was the signal to return to the train; that the engine was moving when the signal was given, and it came down near the boarding train, and he hurried, and, with other men, got on; "and in a minute, without a moment's notice, the engine started, almost like a shot out of a gun, and ran into this train that was standing on the side track." He says he was sitting with his back against the round water-tank, about four feet from the end of the car, and a little to the right of the center of the tank. A violent collision occurred, the result of which was the moving the tanks and plaintiff, and both his feet and legs were crushed, and they had to be amputated.

There was conflict of testimony as to the position of plaintiff. A witness for defendant testified that his feet and legs were hanging down over the end of the car. The superintendent of the road testified that when the train was made up, and the engine attached, and they were ready to go, and the whistle was blown, then the men were to get on, and anywhere they could find a place. He had issued orders to that effect, and said the water car was not a safe place. The plaintiff testified that he never heard any such orders; that the orders were to get on the cars that were attached to the engine, when the whistle blew.

There was a conflict as to the engineer's condition as to sobriety at the happening of the accident. A witness (a saloon keeper) testified that immediately after "he was pretty full," and he also said: "Henry Moore [engineer] drank, and drank lots, too." The master mechanic, on the other hand, testified that immediately after the accident happened he jumped on the engine, and the engineer was sober.

The question first arises, did the undisputed facts warrant a submission of the case to the jury? In other words, whether the plaintiff, in getting upon the car, as stated by himself was guilty of an act evidently dangerous, and in so doing was guilty of such negligence as should preclude him from having a verdict as a matter of law. In Railroad Co. v. Stout, 17 Wall. 657, the supreme court says: "It is true, in many cases, that, where the facts are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question, rather than where deduction or inferences are to be made from the facts. * * * In some cases, too, the necessary inference from the proof is so certain that it may be ruled upon as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled, as a matter of law, that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So, if a coachman intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or axle, which could not have been anticipated, an injury occurred, it might be ruled, as a question of law, that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. Upon the facts proven in such cases it is a matter of judgment and discretion--of sound inference--what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of the jury. Twelve men, of the average of the community, comprising men of education, and men of little education, and men of learning, and men whose learning consists only in what they have themselves seen and heard,--the merchant, the mechanic, the farmer, the laborer,--these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a...