Palcher v. Oregon Short Line R. Co.

• Decision Date: 06 December 1917
• Citation: 169 P. 298,31 Idaho 93
• Parties: JOHN PALCHER, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

169 P. 298

31 Idaho 93

JOHN PALCHER, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 6, 1917

MOTION FOR NONSUIT-EVIDENCE-LIABILITY OF RAILROAD COMPANY FOR FORCIBLE EJECTION OF TRESPASSER ON TRAIN-DAMAGES-OBJECTIONABLE STATEMENT OF COUNSEL TO JURY.

1. Where a motion is made for nonsuit at the close of the evidence on behalf of plaintiff, upon the ground that the evidence is insufficient to warrant the submission of the case to the jury, and the motion is denied, and evidence is thereafter offered by the defendant, such ruling of the trial court is not reviewable on appeal.

2. Held, that under the facts and circumstances disclosed by the evidence, when considered in connection with the liabilities imposed upon the appellant railroad company by sec. 2822 Rev. Codes, as amended by ch. 188, Sess. Laws 1911, p. 620, the trial court committed no error in refusing to direct a verdict for the appellant.

3. Where counsel, during his argument to the jury, stated matter not within the record and at variance with the testimony of a witness, but upon objection requested the court to, and the court did, instruct the jury that their verdict must be based solely upon the evidence admitted during the trial; and the record contains no ruling of the trial court adverse to appellant touching the alleged misconduct of counsel, no exception is presented upon which error may be predicated, so as to entitle it to be reviewed.

[As to argument of counsel, misconduct in which calls for a new trial, see note in 9 Am.St. 559]

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.

Action for damages for personal injury. Judgment for plaintiff affirmed.

Judgment affirmed. Costs awarded to respondent.

Geo. H Smith, H. B. Thompson and N.D. Jackson, for Appellant.

"When damages arise from one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damages were produced by the former cause and he must fail also if it is just as probable that they were caused by one as the other." (Powers v. Pere Marquette R. Co., 143 Mich. 379, 106 N.W. 1117.)

And under such circumstances a verdict will be set aside upon the ground that it cannot be supported by speculation or conjecture. (Neal v. Chicago, R. I. & P. Ry. Co., 129 Iowa 5, 105 N.W. 197, 2 L. R. A., N. S., 905; Union P. R. Co. v. Fickenscher, 74 Neb. 497, 105 N.W. 39, 110 N.W. 561.)

"Inferential evidence of negligence is overcome by defendant's undisputed testimony negativing negligence, so that, if plaintiff's case rests wholly on inferential evidence, the case should be taken from the jury." (Richards v. Oregon Short Line R. Co., 41 Utah 99, 123 P. 933.) The jury may not arbitrarily disregard testimony of unimpeached witnesses supported by all the circumstances in the case. (Haddox v. Northern P. R. Co., 43 Mont. 8, 113 P. 1119; Sparks v. Bemis Bros. Bag Co., 62 Wash. 625, 114 P. 442.)

The judgment must be reversed because of misconduct of counsel. (Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783; McLean v. Hayden Creek Mining & Milling Co., 25 Idaho 416, 138 P. 331.)

The effect of remarks of counsel was substantially and by inference the same as commenting on excluded evidence, or of stating what counsel would have been able to prove had not the adverse party objected and the court excluded the evidence. (Haynes v. Trenton, 108 Mo. 123, 18 S.W. 1003; Festner v. Omaha & S.W. R. R. Co., 17 Neb. 280, 22 N.W. 557; Cook v. Doud, 14 Colo. 483, 23 P. 906; Southern Ry. Co. v. Shaw, 86 F. 865, 31 C. C. A. 70; Becker v. Philadelphia Rapid Transit Co., 245 Pa. 462, 91 A. 861.)

Soule & Soule, for Respondent.

"Where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support his defense and makes a case upon the merits, the court and jury has a right to consider the whole case and the motion for a nonsuit is waived." (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Tonkin Clark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669.)

On a motion by the defendant for a nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant is deemed to have admitted all the facts of which there is any evidence, and all of the facts which the evidence tends to prove, and the evidence must be interpreted most strongly against the defendant. (Culver v. Kehl, 21 Idaho 595, 123 P. 301; Shank v. Great Shoshone & Twin Falls Water Power Co., 205 F. 833, 124 C. C. A. 35.)

Where there is any evidence to support plaintiff's case, a motion for nonsuit or directed verdict should be denied. (Martin v. Dowd, 8 Idaho 453, 69 P. 276; Powers v. Pere Marquette R. Co., 143 Mich. 379, 106 N.W. 1117.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This is an action for damages alleged to have been sustained by respondent while riding upon one of appellant's freight trains as a trespasser on the 22d day of February, 1914. The case was tried before a jury, who returned a verdict for respondent for $ 2,999, upon which judgment was entered. This appeal is from the judgment.

It is alleged in the complaint: That while respondent was riding upon appellant's freight train as a trespasser and while the train was running at a high rate of speed an employee of the company, who with other employees was in charge of the train, and who with the knowledge and approval of appellant habitually exercised the duty of deciding who should and should not ride upon such trains and ejecting or not ejecting such persons accordingly, came along the train and found respondent, and after threatening conduct and language, wantonly, viciously, negligently and recklessly, and without regard for the rights or life of respondent, shot him, the bullet taking effect in his right forearm; and that as a result of the shock from the bullet respondent lost his hold and fell from the platform and the wheels of the cars passed over him, severing his right arm near the shoulder-joint and that he was severely injured about the head.

The answer admitted the character of the injury and that it was caused by some car or train of the appellant company, but denied the shooting of respondent or that any employee of the company had anything to do with ejecting respondent from the train, denied any neglect, wilfulness, wantonness or any disregard of the rights or life of respondent or that the injury was caused by anyone in its employ, and disclaimed any knowledge as to how the accident occurred.

The four assignments of error relied upon by appellant present three propositions: First, that the court erred in denying the motion for nonsuit; second, that the court erred in denying the motion for directed verdict; and third, prejudicial misconduct of counsel.

The first assignment, predicating error upon the refusal of the court to grant a nonsuit at the close of respondent's case, is not well taken. It must be regarded as settled law in this jurisdiction that "where a motion is made for nonsuit at the close of the evidence on the part of the plaintiff upon the ground that the evidence is insufficient to warrant the submission of the case to a jury, and the motion is denied and evidence thereafter offered by the defendant, the ruling of the trial court . . . . is not reviewable upon appeal. . . . " (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Tonkin Clark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669.)

In discussing the second assignment of error, namely, that the court erred in denying appellant's motion for a directed verdict, it will be necessary to review the evidence. Appellant contends that the evidence failed to establish the material allegations of the complaint and that there was no evidence from which the jury might find that the person who shot respondent, if he was shot, was an employee of the railroad company engaged in the furtherance of the master's business. On the other hand, respondent contends that there was ample evidence to establish all of these elements...