Pengilly v. J. I. Case Threshing Mach. Co.

• Decision Date: 23 May 1902
• Citation: 91 N.W. 63,11 N.D. 249
• Parties: PENGILLY v. J. I. CASE THRESHING MACH. CO.
• Court: North Dakota Supreme Court

11 N.D. 249

91 N.W. 63

PENGILLY

v.J. I. CASE THRESHING MACH. CO.

Supreme Court of North Dakota.

May 23, 1902.

Syllabus by the Court.

1. Where an application to the district court for a new trial is based upon newly discovered evidence, and also upon the ground that the evidence adduced at the trial is insufficient to justify the verdict, the same is addressed to the sound judicial discretion of the trial court. In such cases the trial court will weigh the evidence, and its decision of the application cannot be governed by any fixed rules of law. Such discretion, however, is not a personal discretion of the judge, to be exercised capriciously or arbitrarily, but is a sound legal discretion.

2. On appeal from an order made in such cases the order will be affirmed unless it appears that there was an abuse of discretion in making the same, and in such cases the reviewing court will consider and weigh the evidence only so far as may be necessary to determine the question whether the trial court acted within its discretion.

3. An order granting a new trial is in such cases rarely reversed, and then only upon grounds which are strong and convincing. Courts discriminate in favor of such orders because the same are not final, but are such as require a retrial of the facts and merits.

4. Applying the rules of law as above stated, it is held in this case that the order of the district court granting a new trial must be affirmed.

Appeal from district court, Walsh county; W. J. Kneeshaw, Judge.

Action by Reuben Pengilly against the J. I. Case Threshing Machine Company. Verdict for defendant. From an order granting a new trial, it appeals. Affirmed.

Turner & Lee, for appellant. H. A. Libby and Cochrane & Corliss, for respondent.

WALLIN, C. J.

This action was brought to recover damages for a personal injury which plaintiff received while unloading a threshing engine from a flat car at Park River, N. D. The defendant is a manufacturer of such engines, and has an agency at Park River, at which the defendant's engines are kept for sale; and at the time in question one J. T. Smith was in charge of the agency, and was in the defendant's employ, and as such employé Smith had the supervision of the matter of unloading the engine in question. It appears that plaintiff had, previous to the arrival of the engine at Park River, ordered this or a similar engine of the defendant, and, when the engine reached Park River, Smith notified the plaintiff of the fact, and requested him to assist in unloading the same from the flat car. Plaintiff, upon such notice, and to expedite the delivery of the engine, did assist in unloading the engine, and in doing so was injured; and plaintiff alleges in his complaint that his injuries resulted from the negligence of Smith while acting as the agent of the defendant, in unloading the engine. At the close of the testimony, and at defendant's request, special findings, eight in number, were submitted to the jury by the trial court, and all of said findings were found for the plaintiff except the seventh, which was found for the defendant, and which is as follows: “Was the plaintiff, Pengilly, guilty of any want of ordinary care which contributed proximately to his injury?” The plaintiff moved upon the minutes of the court and upon affidavits to set aside the special verdict and for a new trial of the action. The affidavits embraced evidence alleged to be newly discovered, and relating to the matter of the contributory negligence of the plaintiff. The grounds of the motion, as stated in the notice of intention, are as follows: “(1) Newly discovered evidence material to the plaintiff, and which he could not with reasonable diligence have discovered and produced at the trial. (2) Insufficiency of the evidence to justify said verdict, in that there was no evidence whatever of any negligence or carelessness on the part of the plaintiff at the time of his injury, and that such question was not in issue upon the trial.” The motion was granted by an order of the district court. The defendant has appealed from such order, and error is assigned upon it in this court.

It will be noticed that the plaintiff, in moving to vacate the verdict and for a new trial, is assailing the seventh finding of the jury, and that only. The notice of intention, by its terms, attacks the seventh finding upon two grounds, viz.: First, that there is no evidence whatever that the plaintiff, by his own negligence, contributed to the injury of which he complains; and, second, that the question of plaintiff's contributory negligence “was not in issue upon the trial.” We will consider these questions in their inverse order. An inspection of the complaint shows that the plaintiff, in stating his cause of action, uses the following language: “The plaintiff further alleges that it was by or through no fault, negligence, or carelessness on his part that he met with and sustained such injury.” The answer embraces a general denial of the allegations of the complaint, but contains no specific denial of the particular averment of the complaint above quoted. Upon this state of the pleadings it is contended by counsel for the plaintiff that the question of plaintiff's negligence was not involved in the controversy, and, as they argue, the jury, in finding upon that question, have introduced an issue which is extraneous, and as such should be disregarded by this court. This contention is sought to be supported by the argument that the averment in the complaint to the effect that plaintiff was free from negligence in the premises was superfluous, and hence that the same was not a material averment of fact, and therefore that the general denial contained in the answer did not raise any issue of fact upon the matter of plaintiff's contributory negligence. We agree with this contention of plaintiff's counsel in so far as they claim that it was unnecessary to insert in the complaint the averment which is above quoted. While there is a conflict of authority upon the question, the point has been settled in this state. See Gram v. Railroad Co., 1 N. D. 253, 46 N. W. 972. In this state the question of plaintiff's contributory negligencein this class of cases is a matter of defense, and the same forms no part of the plaintiff's case, and hence need not be referred to in the complaint. In this state, therefore, the insertion in the complaint of a statement that the plaintiff's negligence did not contribute to the injury is bad pleading in this: that it violates a well-settled rule of Code pleading forbidding the anticipation of defensive matter in a complaint. But in this case it becomes immaterial to inquire whether plaintiff's negligence was in issue under the pleadings as they were framed. Whether in issue or not, technically speaking, the issue of contributory negligence was submitted to the jury by the trial court as a matter of fact, and no objection was made to such submission. Nor does this record embrace an exception to the action of the trial court predicated upon the order submitting the question to the jury. Nor is there an exception or error assigned upon the admission of evidence relating to the matter of plaintiff's contributory negligence. Turning to the evidence relating to the matter of contributory negligence, we find in the record certain evidence offered at the trial, which, in our opinion, tended to establish the existence of contributory negligence; and it will be necessary to briefly refer to this evidence in disposing of the case. It appears that, as a means of unloading the engine, a structure was built upon an inclined plane leading from the ground to the end of the flat car. This structure, it is conceded, was properly built, and it is further conceded that Smith, who had charge of the work of unloading the engine, was a man who had previously had considerable experience in unloading such engines from flat cars. The plaintiff also had been handling threshing machines for several years prior to the accident. The engine, which was on wheels, was backed off the car, and Smith at all times had control of a certain lever called the “friction clutch lever” which worked as a brake, and by its use the speed of the descent of the engine down the incline was within Smith's control. Smith also had exclusive control of the steering appliance of the engine, whereby the wheels resting upon the car and upon the structure extended to the ground could be guided and turned either way. Smith's position was on the platform, where he could reach and control both the friction clutch lever or brake and the steering appliance. It seems that when the clutch lever or brake is set the engine would not move down the incline by the force of its weight alone, and that, in order to give it headway, it was necessary, or at least was deemed proper, to turn the fly wheel of the engine. At the time of the accident the plaintiff stood on top of one of the large wheels of the engine, called a traction or drive wheel, and was, when in that position, engaged in turning the fly wheel as a means of moving the engine down the incline leading to the ground. His...