Oregon Short Line Railroad Co. v. Mountain States Telephone & Telegraph Co.

• Citation: 41 Idaho 4,237 P. 281
• Court: United States State Supreme Court of Idaho
• Decision Date: 03 June 1925
• Parties: OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant, v. THE MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY, a Corporation, Respondent

237 P. 281

41 Idaho 4

OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant, v. THE MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY, a Corporation, Respondent

Supreme Court of Idaho

June 3, 1925

INSTRUCTED VERDICT-REQUEST BY BOTH PARTIES-EFFECT OF-APPEAL AND ERROR-VERDICT OR FINDINGS.

1. Where both parties respectively move for an instructed verdict and do no more, they thereby assume the facts to be undisputed, and, in effect, submit to the trial court the determination of the inferences proper to be drawn from them.

2. Where both parties request a peremptory instruction and no other instructions, the court's direction of a verdict for one of the parties is a finding of fact which concludes both parties as effectually as if such fact had been found by the jury.

3. Where at the conclusion of the evidence in a case each party requests the court to instruct the jury to render a verdict in its favor, and the party whose request is denied does not request to go to the jury upon the facts, the verdict so rendered should not be set aside, unless clearly against the weight of the evidence.

4. The verdict of a jury or finding of a court will not be set aside where there is substantial evidence to support the same though such evidence be negative in character.

5. If from the testimony the jury might have found a verdict for the plaintiff or for the defendant, where both parties request an instructed verdict in their favor, the finding of the trial court in favor of one or the other will not be disturbed.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action for damages. Directed verdict for defendant. Affirmed.

Judgment of the lower court sustained. Costs to respondent.

George H. Smith, H. B. Thompson and John O. Moran, for Appellant.

Where a plaintiff makes a prima facie case and defendant offers nothing in rebuttal, the duty of the court, upon both sides resting, is to direct a verdict for plaintiff. (Second Decennial Digest, "Trial," secs. 141, 170; Sim's Admr. v. C. & O. R. Co., 140 Ky. 241, 130 S.W. 1081; 26 R. C. L. 1073.)

It is the duty of the trial judge to direct a verdict at the close of evidence, whenever it is wholly undisputed, or but a single inference can be drawn therefrom by reasonable men, so that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition thereto. (Empire State Cattle Co. v. Atchison T. & S. F. R. Co., 210 U.S. 1, 28 S.Ct. 607, 52 L.Ed 931.)

Budge & Merrill, for Respondent.

Where both parties make a motion for a directed verdict it is equivalent to a submission of the cause to the court for determination of the inferences to be drawn from the evidence and his finding will be regarded by the appellate court in the same light as the verdict of a jury and will not be set aside unless clearly erroneous. (First Nat. Bank v. Hayes, 64 Ohio St. 100, 59 N.E. 893; Fifty Associates v. Quigley, 56 Mont. 348, 185 P. 155; Bank of Commerce v. U.S. F. & G. Co., 58 Mont. 236, 194 P. 138; Share v. Coates, 29 S.D. 603, 137 N.W. 402; Van Woert v. Modern Woodmen, 29 N.D. 441, 151 N.W. 224.)

GIVENS, J. Wm. E. Lee and Taylor, JJ., concur.

OPINION

GIVENS, J.

This action was instituted by appellant to recover $ 3,045.67 as damages alleged to have been occasioned to a locomotive, roadbed and equipment in consequence of the engine having been derailed by a large rock encountered on the track in a cut a slight distance east of Glenns Ferry, Idaho, June 4, 1921, which rock, it is claimed, came on the track in consequence of an employee of the defendant telephone company dislodging the same in the course of his employment, when proceeding, and so he could continue, in an automobile on an abandoned road on the hillside parallel with and approximately 200 feet above the tracks, the slope between being about one to one; that the telephone company's employee negligently and in reckless disregard of the railroad company's rights rolled the rock down the hillside, which allegations were denied by the telephone company.

At the conclusion of plaintiff's testimony, the defendant offering no testimony, each side respectively moved for an instructed verdict in their favor and respondent's motion was granted, to which ruling appellant excepted. Thereafter a motion for a new trial was made, which was denied and the present appeal taken therefrom.

Appellant assigns as error the action of the court in directing the verdict in favor of defendant and in denying appellant's motion for a directed verdict and in overruling the motion for a new trial.

Neither immediately after both parties had asked for an instructed verdict nor after the court had granted respondent's request for a directed verdict did appellant request that the matter be submitted to the jury.

It is to be noted that appellant does not complain because the court did not present the case to the jury, only that the court improperly granted respondent's request instead of appellant's request for an instructed verdict.

The only testimony adduced by appellant with reference to how the rock came to be on the track except as to marks indicating it had rolled down the hill, or who or what caused it to roll, was given by the employee of the telephone company, who drove the automobile referred to. He stated he stopped his car as he was going up the road because there were some rocks piled in the road, and in response to the question, "After you had stopped your car for a brief time you again got in and resumed your driving and went on toward the trouble," he answered, "Yes, sir. . . . Possibly a quarter or half a mile," and further stated that when he returned later he found that the train had run into a rock and been damaged, and that he had driven the road many times.

"Here, both parties, on the termination of the evidence in the case, made similar requests,--the plaintiff for a verdict in its favor, and the defendants for a verdict in their favor; both parties in this way voluntarily submitting the case to the court for its determination upon the evidence. In Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654, where like requests had been made, the justice delivering the opinion says: 'This was necessarily a request that the court find the facts, and the parties are therefore concluded by the findings by the court, upon which the resulting verdict was given.' In Thompson v. Simpson, 128 N.Y. 270, 28 N.E. 627, where, upon the conclusion of the evidence, each party had asked the court to direct a verdict in his favor, and the court thereupon directed a verdict for the defendant, the court said: 'The effect of a request by each party for a verdict in his favor clothed the court with the function of a jury, and it is well settled that in such case, where the party whose request is denied, does not thereupon request to go to the jury upon the facts, a verdict directed for either party stands as would the finding of a jury for the same party in the absence of any direction; and the review in this court is governed by the same rules as in ordinary cases rendered without direction." The question seems new in this state, and is so possibly from the fact that it will seldom happen that at the close of the evidence each party will move the court for the direction of a verdict in his favor. But it seems conformable to reason that, where it is done, each party must have intended to submit the case to the court for its finding upon the facts as well as the law; and when, as in this case, the party against whom the verdict is rendered does not ask to have the case submitted to the jury, he cannot be heard to say there was error because there was some evidence tending to support the issue in his favor. In such case the finding of the jury in accordance with the instruction of the court should be given the same consideration as if it had been rendered without such instruction. See, also, the following cases: Trustees v. Vail, 151 N.Y. 463, 467, 45 N.E. 1030; Clason v. Baldwin, 152 N.Y. 204, 46 N.E. 322; Mascott v. Insurance Co., 69 Vt. 116, 37 A. 255; New England Mortg. Security Co. v. Great Western Elevator Co., 6 N.D. 407, 71 N.W. 130.

The question, then, presented by the record is, not whether there was any evidence to support the plaintiff's claim, but whether, upon the evidence adduced, the finding should have been for the defendant. And the question must be determined as if the case had been submitted to the jury upon the issues joined, without a direction to return a verdict for the defendant; for it is in fact the finding of the court upon the evidence submitted to it by the act of the parties that is to be reviewed, and not whether there was some evidence tending to support the plaintiff's claim; for, as already observed, the omission of the plaintiff, after the court had directed a verdict for the defendant, to ask it to submit the case to the jury, must be taken as a waiver of its right to have the jury pass upon the evidence. And it is more than probable that this was not a mere oversight, and that it was omitted for the reason it is probable the jury would have rendered the same verdict the court had already directed on the motion of the plaintiff. Was, then, the verdict rendered upon the instruction of the court so clearly against the weight of the evidence that it should be set aside, and a new trial granted?" (First Nat. Bank v. Hayes, 64 Ohio St. 100, 59 N.E. 893.)

The above statement is clear and concise as to the rule to be applied in the case herein and is supported by the overwhelming weight of authority as appears from, among others, the following: Vinson v. Wooten, 163 Ark 170, 259 S.W. 366; A. M....