Kinzell v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 03 April 1920
• Citation: 190 P. 255,33 Idaho 1
• Court: Idaho Supreme Court
• Parties: WILLIAM KINZELL, Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, a Corporation, Appellant

190 P. 255

33 Idaho 1

WILLIAM KINZELL, Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 3, 1920

CERTIORARI TO SUPREME COURT OF THE UNITED STATES-REVIEW, SCOPE OF-STATE COURT-REMITTITUR TO-ERRORS UNDECIDED-REVIEW OF-EVIDENCE-CONFLICT-QUESTION FOR JURY-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS-FELLOW-SERVANT DOCTRINE-FEDERAL EMPLOYERS' LIABILITY ACT-EFFECT OF-NEGLIGENCE-EXPERIMENTAL EVIDENCE-EXPOSURE OF PERSON IN PRESENCE OF JURY-REOPENING CASE-DISCRETION-DAMAGES-VERDICT.

1.The jurisdiction of the supreme court of the United States to review the proceedings of state courts is not that of a general reviewing court, but is limited to specific instances of denials of federal rights or federal questions involved.

2.Assignments of error which involve no federal question cannot be reviewed by the supreme court of the United States under the Judicial Code, sec. 237.

3.Where a state court has declined to rule on errors properly assigned upon the theory that the decision of the federal question involved disposes of the case, and the cause on certiorari to the supreme court of the United States is reversed and remanded for further proceedings not inconsistent with the decision of the latter court, the former court should dispose of the errors so left undecided.

4.When the evidence is conflicting upon any issue of fact, such issue should be determined by the jury.

5.An employee working on a dozer assumes the risk of a coupling made by a work train at the usual and customary speed, but he does not assume the additional risk of a coupling negligently attempted at an unusual and excessive rate of speed, for he has the right to assume that the coupling will be made at the usual rate of speed, and if a coupling is attempted at an excessive rate of speed, he is not in a position to exercise any choice in the matter.

6.An employee working upon a dozer assumes the risk involved in the use, in the customary manner, of such safety appliances as are usually and generally furnished for the use of his fellow-servants, but he does not assume the additional risk entailed by the omission of such a customary appliance where he has no previous notice of such omission, for he is placed in a position where he has no choice in the matter.

7.Even though the trial court should err in refusing a requested instruction, such refusal does not require the reversal of the judgment where the jury by a specific finding of fact distinctly negatived the hypothesis upon which alone the instruction was based.

8.Under the federal employers' liability act the fellow-servant doctrine no longer obtains, but the employer is liable to the employee for injuries caused by the negligence of other employees when acting within the scope of their employment.

9.It is a part of the trainmen's duties when moving a work train toward a dozer for the purpose of coupling thereto to keep a lookout in the direction in which they are going, to reduce the speed so that when attempting to couple the train shall not strike the dozer with great or unusual force or violence, and an omission to observe this duty is negligence.

10.The propriety of permitting a party to reopen his case rests in the sound discretion of the trial court.

11.Held, that in view of the sharp conflict in the evidence upon the questions to which the experimental evidence was directed, the trial court did not abuse its discretion in permitting respondent to reopen his case.

12.In an action for damages for personal injuries, brought by the injured employee himself, under the federal employers' liability act, the jury may take into consideration in assessing the damages his pain and suffering, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effect upon his future.

13.Held, that the judgment is excessive, and must be reduced from $35,000 to $25,000, and unless plaintiff consents to such reduction of the judgment, a new trial is granted.

APPEAL from the District Court of the First Judicial District, for Shoshone County.Hon. William W. Woods, Judge.

Action for damages for personal injuries.Judgment for plaintiff.Modified and affirmed conditionally.

Judgment affirmed.No costs awarded on appeal.

Geo. W Korte and Robert H. Elder, for Appellant.

It becomes the duty of this court, under the mandate of the federal supreme court, to proceed to determine all the remaining questions reserved and raised by the defendant's assignments of error.(Ettor v Tacoma,77 Wash. 267, 137 P. 820;In re Sanford Fork & Tool Co.,160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 see, also, Rose's U. S. Notes.)

The charge that the speed of the train was more than four miles an hour was not sustained.Eight unimpeached railroad men proved that the speed of the train did not exceed four miles an hour when making the coupling.Plaintiff and his one witness proved nothing except that there was a severe jolt and plaintiff alone was knocked from the car.This did not sustain the specific charge of negligence.(Southern Ry Co. v. Gray,241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030;Great Northern Ry. Co. v. Wiles,240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732, see, also, Rose's U. S. Notes;Midland Valley Ry. Co. v. Fulgham,181 F. 91, 104 C. C. A. 151;Randall v. Baltimore & Ohio Ry. Co.,109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003, see, also, Rose's U. S. Notes;Idaho Mercantile Co. v. Kalanquin,8 Idaho 101, 66 P. 933;Fort Worth Belt Ry. Co. v. Cabell(Tex. Civ.), 161 S.W. 1083.)

Plaintiff not only assumed the risk of the absence of the tail air-hose apparatus, but he took the risk of injury from the movement of the train.He knew the train would come against the dozer at the speed of at least four miles per hour.He had ample opportunity to determine with certainty what the speed of the train was, by merely turning around and observing its movement.This he did not do.(Seaboard Air Line Ry. v. Horton,233 U.S. 492, Ann. Cas. 1915B, 475, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, 8 N.C. C. A. 834;Boldt v. Pennsylvania R. R. Co.,245 U.S. 441, 38 S.Ct. 139, 62 L.Ed. 385;Jacobs v. Southern Ry. Co.,241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970, see, also, Rose's U. S. Notes;Pollock on Torts, 10th ed., p. 485;Neil v. Idaho etc. Ry. Co.,22 Idaho 74, 91, 125 P. 331;Nivert v. Wabash Ry. Co., 232 Mo. 626, 135 S.W. 33.)

The amount allowed by the jury ($ 35,000) is more than compensation.Such a verdict amounts to taking property without due process of law and in a purely arbitrary manner through bias, prejudice and passion committed under the forms of law.(McAlinden v. St. Maries Hospital Assn.,28 Idaho 678, Ann. Cas. 1918A, 380, 156 P. 115;Norfolk & Western Ry. Co. v. Holbrook,235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392, 7 N.C. C. A. 814;Chesapeake & Ohio Ry. Co. v. Gainey,241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124, see, also, Rose's U. S. Notes;Illinois Cent. Ry. Co. v. Skinner's Admx.,177 Ky. 62, 197 S.W. 552(certiorari denied, 246 U.S. 663, 38 S.Ct. 333, 62 L.Ed. 928);Neil v. Idaho etc. Ry. Co.,22 Idaho 74, 125 P. 331;Denbeigh v. Oregon etc. Nav. Co.,23 Idaho 663, 132 P. 112;New York, C. & St. L. Ry. Co. v. Niebel, 214 F. 952, 131 C. C. A. 248.)

The refusal of the court to give the jury a method to follow in making the proper allowance for plaintiff's contributory negligence had no other effect than to aid the excessive verdict.The jury allowed nothing for his negligent act in refusing to take observance of a train which he knew was backing down until it was upon him.(Norfolk & Western Ry. Co. v. Earnest,229 U.S. 114, Ann. Cas. 1914C, 172, 33 S.Ct. 654, 57 L.Ed. 1096;Seaboard Airline Ry. v. Tilghman,237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069;St. Louis & S. F. R. R. Co. v. Brown,241 U.S. 223, 36 S.Ct. 602, 60 L.Ed. 966;Illinois Central R. R. Co. v. Skaggs,240 U.S. 66, 36 S.Ct. 249, 60 L.Ed. 528, see, also, Rose's U. S. Notes;Pennsylvania Co. v. Sheeley,221 F. 901, 137 C. C. A. 471;Waina v. Pennsylvania Co.,251 Pa. 213, 96 A. 461;Nashville, C. & St. L. Ry. Co. v. Banks,156 Ky, 609, 161 S.W. 554;Rose v. St. Louis & S. F. Ry. Co.,93 Kan. 517, 144 P. 844;Pfeiffer v. Oregon etc. Nav. Co., 74 Ore. 307, 144 P. 762.)

The verdict is tainted by the procedure, and the defendant's federal right to have just compensation based upon legitimate proof has been denied.In this respect the verdict is unjust and void.(Brown v. Swineford,44 Wis. 282, 28 Am. Rep. 582;Garvik v. Burlington etc. R. Co.,124 Iowa 691, 100 N.W. 498;Guhl v. Whitcomb,109 Wis. 69, 83 Am. St. 889, 85 N.W. 142;Cincinnati, N. O. & T. P. Ry. Co. v. Nolan,161 Ky. 205, 170 S.W. 650;1 Thompson's Trials, 1st ed., sec. 861.)

The trial court stated to the jury that the witness McGraw was prejudiced against the plaintiff.The statement was prejudicial and sufficient in itself to warrant a new trial.(Beaumont v. Beaumont,152 F. 55, 81 C. C. A. 251;Waldron v. Waldron,156 U.S. 361, 15 S.Ct. 383, 39 L.Ed. 453;Washington Gas Light Co. v. Lansden,172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543;Throckmorton v. Holt,180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663, see, also, Rose's U.S. Notes;State v. Shuff,9 Idaho 115, 72 P. 664;McKissick v. Oregon etc. Ry. Co.,13 Idaho 195, 89 P. 629;Nave v. McGrane,19 Idaho 111, 113 P. 82;Goldstone v. Rustemeyer,21 Idaho 703, 123 P. 635;State v. Jackson,83 Wash. 514, 145 P. 470;Eckhart v. Peterson,94 Wash. 379, 162 P. 551;Edwards v. City of Cedar Rapids,138 Iowa 421, 116 N.W. 323;38 Cyc. 1320.)

John P. Gray, James A. Wayne, W. F. McNaughton and W. D. Keeton, for Respondent.

On writ of certiorari from the supreme court of the United States to a state...