Holt v. Spokane & Palouse Ry. Co.

• Decision Date: 07 December 1893
• Parties: HOLT v. SPOKANE AND PALOUSE RAILWAY CO
• Court: Idaho Supreme Court

35 P. 39

3 Idaho 703

HOLT v. SPOKANE AND PALOUSE RAILWAY CO

Supreme Court of Idaho

December 7, 1893

PRACTICE-EXCEPTIONS.-The exception that the verdict is not supported by the evidence cannot be reviewed unless the appeal is taken within sixty days after the rendition of judgment.

NEGLIGENCE-WELL LEFT OPEN-CHILD FELL IN.-The complaint alleges ownership and possession of a certain town lot by defendant upon which a well is situated, and that through the carelessness and negligence of defendant said well was left open, and that deceased, without negligence, carelessness or fault on his part, fell therein and was instantly killed, states cause of action.

MEASURE OF DAMAGES-INSTRUCTION TO JURY-ERROR.-As to the measure of damages, the court, on its own motion, instructed the jury that if they found for the plaintiff they should award him "such damages as they think him entitled to." Held error. That it gave the jury an arbitrary discretion to assess damages as caprice, whim or passion might suggest regardless of the amount demanded by the complaint or shown by the evidence. It relieves the jury of every restriction and authorizes them to grant such damages as they may "think" plaintiff entitled to, whether under all the circumstances of the case it be just or not.

INSTRUCTIONS AS TO DAMAGES.-Prior to giving the instruction above referred to the court instructed the jury that if they found for the plaintiff, "such damages may be given as under the circumstances of the case may be just," and, among other things, in awarding damages they might take into consideration "the relation proved as existing between plaintiff and deceased, and the injury, if any, sustained by plaintiff in loss of said deceased child's society." Held, error. The expression, "all the circumstances of the case," as used in section 4100 of the Revised Statutes of 1887, means relevant circumstances presented to the jury by evidence under the pleadings. No demand was made in the complaint for damages because of the loss of the said infant's society, and no proof was offered showing the social relations existing between plaintiff and said infant.

SECTION 4100 OF THE REVISED STATUTES CONSTRUED.-Under section 4100 of the Revised Statutes of 1887, in this class of cases, certain elements based upon proof may be taken into consideration yet without proof the jury should not consider them.

INSTRUCTIONS.-Where the court gives inconsistent or contradictory instructions the judgment will be reversed.

INSTRUCTIONS-MEASURE OF DAMAGES.-The court did not err in refusing to instruct the jury that in an action by a parent for the death of his minor child the measure of damages "is the value of the child's services until he becomes of age, less the expenses of his support during that time"; the instruction as to the law of negligence as given and found in the transcript, folios 435 to 437, is the correct rule in this case.

PREJUDICIAL ERROR.-The overruling of defendant's motion for a nonsuit cannot be considered, for the reason that this appeal was not taken within sixty days after the rendition of judgment.

EVIDENCE-ADMISSIONS.-Admissions and declarations made by an agent after an accident has occurred cannot be admitted to show the negligence of the principal.

ERROR PRESUMED TO WORK INJURY.-Where error is shown it is presumed to have worked injury to the party against whom it was committed unless it affirmatively appears from the record that no injury did or could result.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with costs in favor of the appellant.

Ashton & Chapman and John R. McBride, for Appellant.

The evidence shows that the well in which the plaintiff's child was drowned was upon the private grounds of defendant, and remote from any public street or sidewalk, and that at the time of the accident the child was not traveling upon any public street or sidewalk, or near thereto, but was a trespasser upon the grounds of the defendant; that the child was not there with the knowledge, consent or invitation of the defendant, either expressed or implied; that the defendant is not shown to have had any knowledge that children were in the habit of playing upon the premises where the well was situated; that the well in question was in open ground, and plainly visible to any person going near it, and not in any manner concealed; that there was nothing put upon the premises by the defendant or maintained there that was calculated to attract children to the vicinity of the well; that there is no evidence in the case upon which the jury could find any damages whatever other than mere nominal damages. We do not question the rule recognized by this court in its former decision in this case, that, "when it can be gathered from the complaint as a whole that the plaintiff had a cause of action, upon which he was entitled to the judgment rendered, however defectively it may have been stated, the judgment may be reversed." (Hallock v. Jandin, 34 Cal. 167.) Definitions of negligence vary in their terms, but this is the substance of all, which is accepted in the books and by the courts. (Bailey on Injuries, 406; Nicholson v. Erie Ry. Co., 41 N.Y. 525.) The cases cited in the brief on the former hearing, it seems to us, are so conclusive against this pretense of a right to compel an owner to control his use of his own property, that they leave nothing to be added. (Hounsell v. Smyth, 7 Com. B., N. S., 732, 97 Eng. Com. L. 729.) To entitle the plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence and imprudence of the plaintiff did not contribute to the result. (Payne v. Forty-second St. etc. R. R. Co., 40 N.Y.S.Ct. 821; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. St. 70, 12 A. 821; Sorenson v. Menasha Paper Pulp Co., 56 Wis. 338, 14 N.W. 446; Trapnell v. Red Oak Junction City, 76 Iowa 744, 39 N.W. 884; Sherman v. Menomonie River Lumber Co., 77 Wis. 22, 45 N.W. 1079.)

James W. Reid, for Respondent.

The rule in these cases rests upon the general principle that the defendant owes to the whole community the duty of abstaining from the necessary doing of anything, upon his own ground or with his own property, which shall put others in peril, the principle being expressed in the maxim, "Sic utere tuo ut alienum non laedas," and the law takes the defendant to know that the community includes persons of weak or undeveloped capacity (Bushwell's Law of Personal Injuries, p. 98, secs. 74-76; Railroad Co. v. Stout, 17 Wall. 665, 21 L. ed., 744.) The evidence of the circumstances showing negligence on the part of the defendant which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Co. v. Stout, 17 Wall. 657, and Randall v. Baltimore etc. R. R. Co., 109 U.S. 478, 3 S.Ct. 322, should have been submitted to the jury. (Hayes v. Michigan Cent. R. R. Co., 111 U.S. 242, 4 S.Ct. 369, 28 L. ed., 412, 27 L. ed., 1003; Evansich v. G. C. etc. Ry. Co., 57 Tex. 126, 44 Am. Rep. 586; Keffe v. Milwaukee etc. Ry. Co., 21 Minn. 207, 18 Am. Rep. 393; Kansas Cent. R. R. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203, and notes; Nagel v. Missouri Pac. R. Co., 75 Mo. 653, 42 Am. Rep. 418.) The appellant should have erected and maintained a fence or other suitable works to protect persons from danger on the public park that it had opened. The omission to do so was gross negligence. (Shearman and Redfield on Negligence, secs. 13, 14; Thompson on Negligence, sec. 1232; Addison on Torts, 49; Cooley on Torts, 647; Sedgwick on Damages, 563; State v. Manchester etc. R. R. Co., 52 N.H. 528; St. Louis etc. R. R. Co. v. Terhume, 50 Ill. 151, 99 Am. Dec. 504; Marcott v. Marquette etc. R. R. Co., 49 Mich. 99, 13 N.W. 374; Mason v. Shawneetown, 77 Ill. 533.) If there be a conflict of evidence as to the facts, then the question is for the jury to decide. (1 Rorer on Railroads, p. 476; Delaney v. Milwaukee etc. Ry. Co., 33 Wis. 67; Chamberlain v. Woodin, 2 Idaho, 642, 23 P. 177.) Contractors and lessees running a railroad in place of the corporate owners are, in respect to such obligations, but the agents of the owners. (1 Rorer on Railroads, 636.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover damages for the death of the infant son of the respondent. The complaint alleges the corporate existence of the appellant; its ownership and possession of certain town lots in the city of Lewiston, Nez Perces county; that while said infant son was traveling and passing upon a certain street and sidewalk, and upon said lot or premises, without any negligence, carelessness of fault on his part, he fell into a certain well situated upon said premises, and was instantly killed; that said well had been left open through the negligence, carelessness, imprudence misconduct and wrongdoing of the appellant--and demanded damages in the sum of $ 100 for funeral expenses, and for the further sum of $ 10,000 damages sustained by reason of the death of said child. The answer admits the ownership of the lot on which said well was situated, and denies possession, and other material allegations of the complaint. The cause was tried by the court, with a jury, and a verdict and judgment given and entered for the respondent for the sum of $ 5,000 and costs. Thereafter, a motion for a new trial was interposed by appellant, and overruled by the court. This appeal is from the judgment. The first error assigned is, in substance, that the complaint fails to state a cause of action. After a careful consideration of the allegations of the complaint, we are of the opinion that they state...