Knuckey v. Butte Electric Ry. Co.

• Decision Date: 29 February 1912
• Citation: 122 P. 280,45 Mont. 106
• Parties: KNUCKEY v. BUTTE ELECTRIC RY. CO. et al.
• Court: Montana Supreme Court

122 P. 280

45 Mont. 106

KNUCKEY v. BUTTE ELECTRIC RY. CO. et al.

Supreme Court of Montana

February 29, 1912

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by Frank Knuckey against the Butte Electric Railway Company and another. From a judgment for plaintiff, defendants appeal. Remanded, with directions for modification.

George F. Shelton, Chas. A. Ruggles, and Peter Breen, for appellants.

J. O Davies and Maury & Templeman, for respondent.

SMITH J.

This is the second time this case has been before the court. See Knuckey v. Butte Electric Ry. Co., 41 Mont. 314, 109 P. 979. After remittitur filed in the district court, the plaintiff amended his complaint so as to charge as follows "That while plaintiff was such passenger, and before the said car reached his aforesaid destination, plaintiff notified the defendants that he wished to get off the car at the crossing of the aforesaid streets, Warren and West Galena; that the defendants, in compliance with this direction from the plaintiff, slowed up said car to a very slow pace, to wit, to about a walking pace; that plaintiff, believing that the car would come to an immediate stop, went upon the front steps and platform of said car preparatory to alighting from said car when it came to a stop; that the defendants did not stop the said car at said crossing, but ran it a short distance, to wit, about 100 feet, past said crossing at said slow rate of speed, and then, while plaintiff was still standing upon the front platform and steps of said car, with the knowledge and consent of the defendants, and waiting for, and still thinking that the car would come to an immediate stop, the defendants in disregard of their duty to the plaintiff, so carelessly and negligently managed, operated, and ran said car, and so carelessly and negligently, suddenly and violently accelerated the speed thereof, and so negligently caused the car to lurch forward violently, that plaintiff was violently thrown from said car to the ground, and by reason thereof" received his injuries. The defendants answered. A trial was had before a jury, which returned a verdict for the plaintiff in the sum of $10,000. From a judgment on the verdict and an order denying a new trial, defendants have appealed.

1. It is contended that the court erred in allowing the amended complaint to be filed, for the reason that it states a different cause of action from that set forth in the original complaint. The original pleading charged negligence in carelessly starting the car and putting the same in motion "by a sudden and violent start without allowing plaintiff sufficient time to get off" at Warren street, "and in consequence thereof plaintiff was suddenly and violently thrown to the ground." We find no reversible error in the ruling of the court. In both complaints the defendants were charged with so negligently operating the car that plaintiff was violently thrown therefrom to the ground. This is the gravamen of the charge. No variance is to be deemed material unless it has actually misled the adverse party to his prejudice. The defendants could not have been surprised or misled by the testimony offered in support of the amended complaint, because substantially the same evidence was produced at the first trial; and it was on the ground of a material and fatal variance between the allegations of the original complaint and plaintiff's testimony that such new trial was ordered. See, also, Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 P. 40.

2. Plaintiff testified that when he stepped from the car to the platform he said, "Warren," referring to Warren street, in an ordinary and natural tone of voice. He was then asked to speak the word as he did on the night of his injury. This answer was: "Well, I stepped out, and I said the word 'Warren."' Defendants moved that the answer be stricken out on the ground that plaintiff had already testified concerning the tone of his voice, and it was for the jury to determine what his ordinary tone of voice was, after listening to his testimony. The motion was denied. We find no prejudicial error in the ruling. Plaintiff also testified: "When I said 'natural tone of voice,' I meant the tone of voice one would use when he stepped out on the platform to notify the motorman."

3. Plaintiff was allowed to testify over objection that on other occasions, desiring to have the car stopped, he had used the word "Warren" to indicate his wish to alight at that street. We take judicial notice that this is the common practice. Whether the motorman heard the word as pronounced by the plaintiff on the night in question was a matter for the jury to determine, by inference or otherwise, from all of the facts and circumstances of the case as detailed by the various witnesses.

4. While the plaintiff was under cross-examination, he said, "I had ridden there before many times." He was then asked by defendants' counsel: "And were the conditions there the same as they had always been prior to that time when you were on the car? Mr. Maury: We object; we were not allowed to go into the conditions; I don't think it is fair on the part of the other side to go into the conditions. The Court: The objection is sustained; it is not proper cross-examination." It is now insisted that the court should have allowed the witness to answer, and an elaborate argument is advanced wherein many suggestions are made concerning the competency, relevancy, and materiality of the inquiry. We think the court unduly restricted the cross-examination, and again suggest the propriety of allowing the fullest scope for such examinations, to the end that the jury may be advised of all facts having a legitimate bearing upon the issues presented. We have no doubt, however, that had the same argument concerning the relevancy and competency of the testimony been presented to the court below, in substance, as has been made here, the objection would have been overruled. It is the duty of counsel to make the record show prejudicial error, and, even upon cross-examination, a reasonable effort should be made to advise the court of the object with which a question is asked. State v. Byrd, 41 Mont. 585, 111 P. 407. We cannot say that the action of the court affected the result of the case. In fact, we are satisfied that it could not have done so.

5. Plaintiff's witness Boulter was asked on redirect examination whether he had any expectation of getting a reward for his testimony. Before objection could be interposed, he answered, "None whatever." Defendants' counsel moved to strike the answer. The motion was denied, and the ruling is assigned as error. The point advanced is that the plaintiff was thus allowed to bolster up the testimony of his witness. We think the error if any, was immaterial in any view. The record discloses that the witness had already testified: "Nobody has ever promised me anything in this case, neither the plaintiff nor the...