McKay v. Montana Union Ry. Co.

• Decision Date: 31 December 1892
• Citation: 31 P. 999,13 Mont. 15
• Parties: McKAY v. MONTANA UNION RY. CO.
• Court: Montana Supreme Court

31 P. 999

13 Mont. 15

McKAY v. MONTANA UNION RY. CO.

Supreme Court of Montana

December 31, 1892

Appeal from district court, Silver Bow county; JOHN J. McHATTON Judge.

Action by Donald McKay against the Montana Union Railway Company for personal injuries. From a judgment entered on a verdict directed in defendant's favor, plaintiff appeals. Defendant moves to strike from the record on appeal all that portion which purports to recite evidence introduced on the trial. Motion granted.

W. I Lippincott, for appellant.

J. S Shrophire, for respondent.

HARWOOD J.

It appears from the complaint in this action that while appellant was in the employ of respondent he received certain personal injuries, alleged to have been sustained through the negligent and careless conduct of defendant's agents and servants, and this action is brought to recover damages therefor. At the close of the trial, defendant moved the court to direct the jury to return a verdict for defendant "for the reason that the testimony of plaintiff shows that he was assisting to propel the car in question, and that, whatever rate of speed it attained, he assisted therein, without objection or protest; that, if he was injured in the manner claimed, he contributed thereto; and for the further reason that there is no testimony showing any actual neglect on the part of plaintiff's fellow servants." The motion was sustained, and the jury, being so instructed, returned their verdict accordingly; whereupon judgment was entered in favor of defendant, and plaintiff appealed from the judgment.

The present consideration relates entirely to a question of practice, arising on motion of respondent to strike from the record all that portion which purports to recite evidence introduced on the trial of the cause. As ground for this motion, respondent's counsel insists that such testimony has not been properly made a part of the record for the purpose of the review sought on this appeal, by statement on motion for new trial or appeal, prepared, served, and settled as provided by law, nor by bill of exceptions prepared and settled and allowed as provided by law. The record upon which the appeal is presented is denominated "plaintiff's bill of exceptions," which includes, first, the pleadings upon which the trial was had, consisting of the complaint, answer, and replication. Following the pleadings is a narrative of what purports to be the testimony introduced on behalf of plaintiff and defendant, comprising about 80 pages of the record. It appears in the narrative of the proceedings that, at the close of the introduction of testimony on behalf of plaintiff, counsel for defendant said: "I had intended to move the court for a nonsuit at this stage, but I will reserve the right, after the close of our testimony, to move the court to direct a verdict for defendant." The record then recites the testimony offered by defendant by way of the examination of several witnesses, and the introduction of the deposition of one witness not present. When defendant closed the introduction of testimony, plaintiff was recalled, and testified in rebuttal. Then follows a statement that, the "testimony having been introduced, defendant moved the court to instruct the jury to return a verdict for defendant, which motion, after argument by counsel and consideration by the court, was by the court sustained, and it was ordered by the court that the jury return a verdict for the defendant; to which order of the court, sustaining the said motion, and ordering the jury to return a verdict as aforesaid, the plaintiff then and there duly excepted, and now, within the time allowed by the court, asks that this, his bill of exceptions, be signed and allowed, which is done accordingly. Signed this 19th day of July, 1892. J. J. McHATTON, Judge." At the close of the narrative of testimony is a certificate by the official court stenographer, to the effect that "the above and foregoing is a true, full, and correct transcript of my notes (in narrative form) of the testimony given at the trial of the above-entitled action in said court, to the best of my skill and ability."

It seems necessary, as the first step in the consideration of the question of practice raised herein, to classify the order of the court determining the case upon trial in favor of defendant. The code of Civil Procedure defines the practice whereby an action is instituted, and carried on through all its stages to final determination. The Code has provided for cases "when, upon the trial, the plaintiff fails to prove a sufficient case for the jury." The remedy prescribed for such an event is judgment of nonsuit. Code Civil Proc. § 242; Garver v. Lynde, 7 Mont. 108, 14 P. 697. Defendant's motion in this case, at the close of the introduction of evidence, was based upon the ground of want of sufficient proof on the part of plaintiff to support the material allegations of his complaint. If that was the condition of plaintiff's case when he closed the introduction of evidence on his behalf, there was no occasion for offering any proof on behalf of defendant. If plaintiff had made out such a case by proof as to require proof from defendant to rebut or counteract the tendency of plaintiff's proof, a nonsuit, or a positive direction to the jury to return a verdict for defendant, under such conditions, would be improper. If there was any occasion for proof from defendant to counteract the effect of plaintiff's proof, then thereby would be produced a conflict in the tendency of the proof offered from each side, and that conflict would be a matter for the jury to pass upon, in the exercise of its function in the trial. This would forbid a nonsuit, or an order directing the jury to return a verdict for defendant. Either determination in that manner is by the court, and proceeds, if correct, upon the ground that there is no sufficient proof offered by plaintiff in support of his complaint to put the jury upon the consideration of the question whether the complaint is established or no. Why, then, should the court require the jury to return a verdict for defendant? This order simply makes the jury the passive clerical agent of the court, to announce its conclusion that the plaintiff has failed to "prove a case sufficient for the jury;" and after all, such verdict being nothing more than the determination of the case by the court, on the ground which calls for nonsuit, we think it should be classified as a nonsuit.

The ground on which the court was asked to direct a verdict for defendant in this case was that plaintiff had failed to produce evidence tending to establish negligence on the part of defendant's agents and servants; moreover, that the proof offered by plaintiff tended to show that he, with some of his fellow laborers of equal rank, voluntarily, and without stress of circumstance, condition, or command, and unnecessarily, so far as any reason shown, propelled the hand car on which they were going to their place of work, down a grade, at a dangerous rate of speed, whereby plaintiff received the injuries complained of, while voluntarily engaged with the others in taking this adventurous ride, at such unnecessary and hazardous rate of speed, which plaintiff, without protest, helped produce by his own efforts at the car handles. If plaintiff's evidence tended to prove a state of facts contrary to the essential allegations of his complaint, it failed in its tendency to establish...