Appeal
from District Court, Silver Bow County; Jeremiah J. Lynch
Judge.
Action
by Patrick Lehane against the Butte Electric Railway. From a
judgment for plaintiff, defendant appealed. Affirmed.
HOLLOWAY
J.
The
plaintiff, Patrick Lehane, was injured in alighting from a
street car owned and operated by the defendant company in the
city of Butte, and brought this action to recover damages for
the injuries sustained. A verdict was returned in his favor
for $1,000, and a judgment was rendered and entered thereon,
from which judgment and an order denying it a new trial the
defendant railway company appeals.
It is
elementary that on appeal this court will be confined to a
consideration of questions arising upon the specifications of
error contained in appellant's brief. In this instance
the assignments of error relate to the giving of instructions
Nos. 1, 2, and 3, and the refusal of the court to give
defendant's instruction No. 11. By an act of the tenth
legislative assembly approved February 25, 1907, it is
provided that "no motion for a new trial on the ground
of errors in the instructions given shall be granted by the
district court unless such errors were specifically
pointed out and excepted to at the settlement of the
instructions, as herein provided; and no cause shall be
reversed by the supreme court for any error in instructions,
which was not specifically pointed out and excepted to at the
settlement of the instructions as herein specified, and such
error and exception incorporated in and settled in the bill
of exceptions or statement of the case as herein
provided." Laws 1907, pp. 62, 65, c. 34. In the case
under consideration, then, we are confined first, to a
consideration of the specifications of error enumerated; and,
second, to the particular objections presented to the action
of the trial court at the time the instructions were settled.
The instructions to which the specifications of error relate
are as follows:
"No.
1. You are instructed that if from the evidence you believe
that the conductor or person in charge of the car on which
plaintiff was riding as a passenger, if you find he was so
riding, was informed by plaintiff that he desired to alight
at the corner of Park and Oklahoma streets, and that the
said conductor or person in charge of said car assented to
such request, and if you further believe that said car did
as a matter of fact stop at the corner of Park and Oklahoma
streets, then you are instructed that the plaintiff had the
right to assume that the defendant company through its
conductor or other person in charge of said car and
controlling its movements would give plaintiff a reasonable
opportunity to alight from said car without injury to
himself. And you are further instructed that if said car
did so stop at the corner of Park and Oklahoma streets, and
that the plaintiff, exercising the care and prudence that a
reasonably careful man under like circumstances would have
used, did attempt to alight from said car, and while
engaged in such attempt to alight therefrom the said
defendant company through its agents in charge of said car
did not give him a reasonable opportunity to get off of
said car, then you are instructed that, even though the
said car started while plaintiff was so engaged in
attempting to get off of said car, nevertheless, said
conduct on the part of the plaintiff did not necessarily
render plaintiff guilty of contributory negligence, unless
you believe from all of the evidence that a reasonably
prudent man in attempting to get off of said car would not
have conducted himself as the plaintiff did at the time and
under the circumstances when he was attempting to alight
from the street car in question. In determining whether
plaintiff was guilty of negligence on his part which
directly contributed to his injury, you are instructed that
you are to take into consideration all of the facts in this
case, and from them determine whether plaintiff, under the
circumstances, conducted himself as a reasonably prudent
man would have done under like circumstances; and, if from
the evidence you believe that a reasonably prudent man
under like circumstances would have acted in the same
manner as plaintiff acted, then you are instructed that
plaintiff was not guilty of contributory negligence.
"No.
2. You are instructed that if you believe under these
instructions and the evidence in the case that the
plaintiff is entitled to recover damages from the defendant
for any injuries which he has proven by a preponderance of
the evidence that he has sustained by reason of the facts
set forth in his complaint, then you have the right to find
for him for such an amount of damages, not to exceed
$1,800, as you believe from the evidence will compensate
him for the personal injuries so received, if any, and in
doing so you have the right to consider the personal
injuries received by him, if any have been proved, and any
pain or suffering he may have endured in consequence
thereof, if any pain or suffering has been proved, and you
have the right to consider his loss of time, if any, caused
by such injuries, if any have been shown.
"No.
3. You are instructed that a passenger in alighting from a
car of a common carrier is entitled to a reasonable time in
which to get off of the car after he has been given an
opportunity to do so; and if you believe from the evidence
that the plaintiff was a passenger on a car of the
defendant, and that the same was started after having been
stopped, if you find it did stop, without allowing him such
reasonable time in which to alight, then the defendant
Butte Electric Railway Company is liable for any injuries
he may have received by reason of the car starting,
provided you believe from the evidence that plaintiff was
in the exercise of reasonable and ordinary care to avoid
injury to himself, or was not guilty of contributory
negligence as defined in these instructions."
"No.
11 [Refused.] The court instructs the jury to find a
verdict for the defendant."
1.
Instruction No. 1. The objections urged to instruction No. 1
are (a) that there is not any evidence that the plaintiff
signaled the operators of the car to stop it; (b) that there
is not any evidence of negligence on the part of the
defendant company; (c) that the evidence is practically
undisputed that the plaintiff was guilty of contributory
negligence; and (d) that the instruction assumes as a fact a
matter in dispute, viz., that the plaintiff notified the
agent of the company to stop and in response to such
notification the car was stopped for the accommodation of the
plaintiff.
Reviewing
these objections in detail, we observe:
(a)
That the plaintiff testified: "I got on the
Meaderville car, and on the way down the conductor came
around, and I told him to let me off on the corner of Park
and Oklahoma
and he nodded his head like that [illustrating], by moving
his head up and down." Even though other witnesses
gave evidence to the contrary, the jurors, being the judges
of the credibility of the witnesses, could believe Lehane
if they chose to do so, which they evidently did.
(b)
Touching the question of defendant's negligence, the
plaintiff testified: "And, when we got to the corner of
Park and Oklahoma, the car stopped, and I was standing up
and two fellows and a lady got off, and then I went to get...
