Mo. Pac. R. Co. v. Fox
| Decision Date | 19 September 1900 |
| Citation | 83 N.W. 744,60 Neb. 531 |
| Parties | MISSOURI PAC. R. CO. v. FOX. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. After trial, on appeal to this court, it was decided that on a certain point in the case the evidence was insufficient to prove a cause of action. The case was reversed, and a second trial had; the trial court submitting to the jury the question thus decided in the former appeal. Held, in the absence of a record to the contrary, that it is presumed the trial court, having the evidence in both trials before it, found a material difference existing, from which it was determined that the decision in the case on appeal did not apply to the evidence as submitted in the second trial.
2. It is a settled rule in this court that a legal principle involved in the trial of a case, when once determined, becomes thereafter the law of the case, binding not only upon the trial court, but this court as well, and will not ordinarily be re-examined in a subsequent review of the proceedings of an inferior court had in the further trial of the action. This rule, however, is not applicable to decisions rendered on questions of fact. In such cases, the decision as to the sufficiency of testimony on a particular feature of the case, as disclosed by the record on the first trial, is not binding in a subsequent trial, where the testimony is, or may be presumed to be, materially different, in the investigation of which a reviewing court is to be controlled by the record then before it, uninfluenced by such prior decision.
3. Where several instructions to the jury in the trial of a case are requested, some of which are inconsistent with the others, and involve different theories of the case, a party submitting such instructions cannot complain of the trial court in adopting one of the theories of the case, and giving the instructions applicable thereto, and refusing those which were inconsistent with the ones given.
4. It is a sound and salutary principle that a party cannot be heard to complain of an error which he himself has been instrumental in bringing about.
5. It is presumed that a jury followed the instructions given in arriving at their verdict, and, unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded.
6. An instruction regarding contributory negligence may be properly refused, when it, in effect, states that contributory negligence would be imputed to an individual who did not exercise the greatest care and caution that an ordinarily prudent man would exercise under like circumstances, and when, grouping a number of acts together, it calls attention to facts and circumstances to be considered of which there is no proof of negligence, and omits an important fact connected with the transaction to which it relates.
7. Where an instruction on contributory negligence is given, which requires a greater degree of care and caution to be exercised than is necessary as tested by the true rule, the giving of such instruction is not to the prejudice of the party alleging contributory negligence.
8. Instruction on contributory negligence examined, and, although technically incorrect, held to be without prejudice.
9. Where a person is confronted with an obvious peril, he is required to exercise care and caution commensurate with the peril. This, however, is to be determined by the conduct of ordinarily prudent men confronted by such peril under like circumstances.
10. It is not necessary to give an instruction requested which involves a proposition covered by other instructions already given, since it is in the nature of a repetition.
11. A person who is a yard master of a railroad company, having charge of switchmen and brakemen, and who has been a switchman himself, and has handled cars of all kinds, and is acquainted with the mode of construction, may be permitted to testify as an expert respecting the manner of construction of certain parts of a car involved in the controversy, and to express an opinion thereon as to what is a proper or improper construction. Such person, although not having as thorough a knowledge as an experienced car builder or car architect, possesses a superior knowledge regarding the subject, qualifying him to speak with reference thereto, for the purpose of aiding the jury to rightly determine the mooted question involved in the controversy.
12. The general rule as to the competency of witnesses to testify as experts rests very largely in the sound discretion of the trial court, whose rulings thereon will not be reversed unless clearly erroneous as a matter of law.
13. Certain testimony as to the duties of a brakeman and car inspector examined, and held admissible under the issues of the case.
14. Expert testimony may be received regarding a subject particularly within the knowledge and experience of those testifying, and which is not of such a character as to be within the knowledge of men of common education and experience in considering and forming an opinion upon it.
15. When the question involved does not fall within the range of common experience or common knowledge, the opinions of witnesses skilled in the particular science, art, or trade to which the question relates are admissible in evidence.
16. Where an answer is not responsive to the question, it should be reached by motion to strike out.
17. The test of the admissibility of evidence is upon the questions asked, rather than the answers returned.
18. Persons having several years' experience in railroading, and having knowledge as to the manner of constructing roadbeds and maintaining the same, held to be competent to testify, and to express an opinion, as to whether the roadbed at a certain place was properly or improperly constructed.
19. Where improper evidence is received, it will be held to be without prejudice, if it appears that the jury could not have been perceptibly influenced by the improper statements received in evidence.
20. Where questions on cross-examination are asked for the purpose of eliciting certain information in the nature of a contradiction of the testimony in chief, and ruled out on objections, and the evidence sought is afterwards established by other uncontradicted evidence, error cannot be predicated on the ruling of the court regarding such cross-examination.
21. Where a witness is asked on cross-examination concerning a certain matter, to which objection is made, and the objection sustained, and the witness is afterwards called as a witness in chief by the party cross-examining, and the same questions asked and answered, no error can be predicated on the ruling in the cross-examination of such witness.
22. The latitude to be given in the cross-examination rests largely in the discretion of the trial court, and should always be restricted to facts and circumstances brought out on direct examination.
23. Where evidence is admitted over objection, as to the statements of the conductor of a train made soon after the accident occurred out of which the suit grew, which was admitted as a part of the res gestæ, and all of said evidence was afterwards stricken out and withdrawn from the jury, error cannot be predicated upon the admission of such testimony.
24. Where, in an action for damages for negligence, a verdict is returned for plaintiff, and, by reason of a motion for a new trial by the defendant, a delay occurs in the rendition of judgment on the verdict, it is not error to allow interest on the amount of damages as found in the verdict, from the date thereof to the date of the rendition of the judgment.
25. Where different trials have been had, resulting in verdicts for a plaintiff, and new trials have been denied by the trial court, the verdict and judgment in the last trial will not be overruled and set aside, unless the evidence is clearly insufficient to support them.
26. Evidence examined, and found to be sufficient to support the verdict of the jury and the judgment rendered thereon.
Error to district court, Cass county; Ramsey, Judge.
Action by William K. Fox against the Missouri Pacific Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.
C. S. Polk, A. N. Sullivan, James W. Orr, and B. P. Waggener, for plaintiff in error.
Matthew Gering, for defendant in error.
For the third time this action is before this court for consideration, the two former opinions being reported and found in Thompson Railway Co., 51 Neb. 527, 71 N. W. 61, and Railway Co. v. Fox, 56 Neb. 746, 77 N. W. 130. The action is founded upon the alleged negligence of the railroad company, resulting, as claimed in the petition, in the death of one Amos Thompson, a brakeman in the employ of said company while in the performance of his duties as such. The acts of negligence, as pleaded, causing or contributing to the death of Thompson, are of a threefold nature. It is asserted that the deceased came to his death in an attempt to make a coupling or connection of a passenger coach to a coal car on the rear end of a freight or accommodation train, then being made up at a station called “Union,” on the line of said road, and that, because of the defective and negligent manner of the construction of the coupling appliances; the improper and negligent construction of a truss rod or bolt in the end of the coal car, it being alleged that it was permitted to protrude through the nut in which it was screwed at the end of the car to an unreasonable and unnecessary length; and the imperfect and improper condition of the roadbed at the place of the accident,--the deceased came to his death, the several acts of negligence, as alleged, causing or contributing to his said death, without fault or negligence on his part.
In the trial first had, upon a peremptory instruction of the court, a verdict was by the jury returned for the defendant company. The peremptory instruction was based upon the conclusion that the evidence failed to sustain...
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