Rumpel v. Oregon Short Line Ry. Co.

• Decision Date: 31 January 1894
• Citation: 35 P. 700,4 Idaho 13
• Parties: RUMPEL v. OREGON SHORT LINE RAILWAY CO
• Court: Idaho Supreme Court

35 P. 700

4 Idaho 13

RUMPEL v. OREGON SHORT LINE RAILWAY CO

Supreme Court of Idaho

January 31, 1894

PRACTICE-EXCEPTIONS-SECTIONS 4426-4430 CONSTRUED.-Exceptions taken during the trial to the rulings of the trial court may be settled and saved in accordance with the provisions of section 4426 of the Revised Statutes of Idaho, or they may be settled after the trial in accordance with section 4430, or in statement on motion for new trial, and when so settled and saved will be reviewed by supreme court on appeal.

CONTRIBUTORY NEGLIGENCE.-Where the plaintiff, in passing along a street which was blocked by a railroad train, with an engine thereto attached, belonging to and then being operated by the defendant, passed under one of the cars of said train five times within an hour and a half, and was caught, and his leg crushed by the moving of the train in an attempt to pass under the sixth time, he is guilty of such contributory negligence as bars a recovery, and this even though the servants of the company failed to ring the bell or sound the whistle before starting.

PERSONS CROSSING RAILROAD TRACKS MUST USE CARE AND PRUDENCE.-Every person in the possession of his senses is bound to use ordinary care and prudence to protect his own person in crossing railroad tracks, and he is not relieved of such necessity, although the company is guilty of negligence, or a violation of the statute, in failing to ring the bell or sound the whistle before starting.

EVIDENCE-CARS BLOCKADING STREETS.-Evidence of a railroad company blockading streets at any other time than that at which the accident is alleged to have occurred, or of custom of people to crawl under cars so blockading streets at other times than that at which the accident occurred, not proper, and should be excluded from the jury.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with directions. Costs awarded to defendant.

Edgar Wilson, for Appellant.

Under our statutes, as construed by this court, there is no substantial difference between a statement and a bill of exceptions. The name given to the document is of little consequence. If it brings here the rulings or decisions of the court below, the objections and exceptions thereto, and is duly certified, it should be treated for what it is, and not for what it may have been called. In this case it is clearly a bill of exceptions, is certified as such and must be so considered. (Bradbury v. Idaho etc. Land etc Co., 2 Idaho 239, 10 P. 620; Schultz v. Keeler, 2 Idaho 333, 13 P. 481.) If the overruling of the demurrer was error, it needed no exception in order that it might be considered on appeal. In fact, this is a jurisdictional question appearing upon the face of the complaint, and one of which the defendant may complain for the first time in this court, if he so desires. (Gorman v. County Commrs., 1 Idaho 656; Choynski v. Cohen, 39 Cal. 501, 2 Am Rep. 476; Morgan v. Menzies, 60 Cal. 341.) It is to be observed that the doctrine of contributory negligence is to be taken with this qualification: that if, in addition to the negligence of the defendant, there enters the element of malice or pure willfulness, the contributory negligence of plaintiff is a false quality, and defendant is liable. Although one may have placed himself in a position of danger yet if the defendant needlessly or wantonly, or recklessly injuries him, the plaintiff can still recover. (1 Harris' Damages by Corporations, p. 333; Weeks' Damnum Absque Injuria, 242, citing Litchfield Coal Co. v. Taylor, 81 Ill. 590; Indianapolis etc. R. Co. v. McClure, 26 Ind. 370; 89 Am. Dec. 467; Mulherrin v. Delaware etc. R Co., 81 Pa. St. 366; Chicago etc. R. Co., v. Donahue, 75 Ill. 106; Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, and note; Norris v. Litchfield, 35 N.H. 271, 69 Am. Dec. 546; Daley v. Norwich etc. R. Co., 26 Conn. 591, 68 Am. Dec. 413; Cooper v. Iowa Cent. R. Co., 44 Iowa 134; Macon etc. R. Co., v. Davis, 18 Ga. 679; Brown v. Hannibal etc. R. Co., 50 Mo. 461, 11 Am. Rep. 420.) Yet in the absence of such willfulness or wantonness the general rule established by the greatly prepondering weight of authority, both in England and America, is that if the injured party might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, and did not, the defendant will neither be held liable, nor will the damages be apportioned between them. (Gray v. Railway Co., 65 N.Y. 561; State v. Manchester etc. R. Co., 52 N.H. 528; Central R. Co. v. Van Horn, 38 N. J. L. 133; Garmon v. Bangor, 38 Me. 443; Hill v. New Haven, 37 Vt. 501, 88 Am. Dec. 613; Baltimore etc. R. Co. v. Mulligan, 45 Md. 486, Forks Township v. King, 84 Pa. 230; Baltimore etc. R. Co. v. Jones, 95 U.S. 439; Indianapolis etc. R. Co. v. Horst, 93 U.S. 291, Michigan Cent. R. Co. v. Campau, 35 Mich. 468; Murphy v. Chicago etc. R. Co., 45 Iowa 661; Mobile etc. R. Co. v. Ashcraft, 48 Ala. 15; Western Union Tel. Co. v. Quinn, 56 Ill. 319; Park v. O'Brien, 23 Conn. 339; Jackson v. Commissioner etc., 76 N.C. 282; Laicher v. New Orleans etc. R. Co., 28 La.Ann. 320; Harlan v. St. Louis etc. R. Co., 65 Mo. 22; Memphis etc. R. Co. v. Thomas, 51 Miss. 637.) It is contributory negligence, if, in the attempt to avoid that which is merely inconvenient and in no sense dangerous, the person injured encounters a danger obviously apparent to the minds of reasonable men. (Patterson's Railway Accident Law, 63, citing Adams v. L. & Y. Ry., L. R. 4 Com. P. 739; Siner v. G. W. Ry., L. R. 3 Ex. 150, L. R. 4 Ex. 117; G. H. etc. R. R. v. Le Gierse, 51 Tex. 189; Damont v. New Orleans etc. R. R., 9 La. Ann. 441, 61 Am. Dec. 214; I. C. R. R. v. Able, 59 Ill. 131; Gavett v. Manchester etc. R. R., 16 Gray, 501, 77 Am. Dec. 422; J. R. R. v. Hendricks, 26 Ind. 228; Judgment of Bramwell, L. J., in Lax v. Darlington, 5 Exch. Div. 28; Pennsylvania R. R. v. Aspell, 23 Pa. St. 147, 62 Am. Dec. 323.) The act of passing under a train of cars, after dark, is an act of gross negligence, and where a person is injured while engaged in such an act, he cannot recover. (Central R. R. Co. v. Dixon, 42 Ga. 327; 1 Thompson on Negligence, 429.) Though it is negligence for a railroad company to leave its train of cars standing and blocking up a public crossing of the streets for a longer time than the law allows, or under circumstances not authorized by law at all, so as to endanger the safety of persons attempting to cross, yet to endeavor to cross by crawling underneath the cars, where they are so standing in the crossing, is also such negligence and want of care as would, if an injury be incurred thereby by an adult person, amount to contributory negligence on his part, and prevent a recovery of damages by him for the injury. (2 Rorer on Railroads, pp. 1018, 1019, citing Rauch v. Lloyd, 31 Pa. St. 358, 370, 72 Am. Dec. 747.) The court erred in allowing any evidence to be introduced in regard to the railway company blockading streets or wagon roads in the town of Nampa at any time or place other than when and where plaintiff was injured. (Gahagan v. Boston etc. R. R. Co., 1 Allen (Mass.), 187, 79 Am. Dec. 724, and note; Peoria etc. Ry. Co. v. Clayberg, 107 Ill. 644; 2 Rice on Evidence, 1108; United States v. Buchanan, 8 How. 83, 102; Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660.)

T. D. Cahalan, for Respondent.

Rulings of court upon orders, evidence or instructions, or irregularities at trial, not regularly excepted to, will not be reviewed. (Thule v. Kaster, 63 Cal. 242; Leahy v. Southern P. R. R. Co., 65 Cal. 152, 3 P 622; Bangs v. Dunn, 66 Cal. 73, 4 P. 963.) Specifications of error in a statement on motion for new trial will not be regarded when no objection or exception were entered or reserved. (Paris v. Raynor, 76 Cal. 647, 18 P. 788; Knott v. Peden, 84 Cal. 300, 24 P. 160; Joyce v. White, 95 Cal. 238, 30 P. 524; Bohnert v. Bohnert, 95 Cal. 444, 30 P. 590.) The exceptions not having been taken as required by section 4426, defendant thereby waived its objections to the alleged errors (Lockhart v. Rollins, 2 Idaho 540, 21 P. 413), and will not be reviewed. (Thide v. Kaster, 63 Cal. 241; Bangs v. Dunn, 66 Cal. 22, 4 P. 963.) If at the time the injury was committed, it might have been avoided by the defendant in the exercise of reasonable care and prudence, an action will lie for the injury. (Kerwhacker v. Cleveland etc. R. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246, 4 Ohio St. 474; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679; Central Pass. R. Co. v. Kuhn, 86 Ky. 578, 579, 9 Am. St. Rep. 309, 6 S.W. 441; Inland etc. Coasting Co. v. Tolson, 139 U.S. 551-558, 11 S.Ct. 653.) Where the statute is not complied with, the contributory negligence of the plaintiff cuts no figure, except in mitigation of damages. (Chesapeake etc. Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, 14 S.W. 428, 11 Heisk. 385, 9 Heisk. 827; 45 Am. & Eng. R. R. Cas. 61; Cleveland v. Monagan, 30 N.Y. 869; Railway v. Jones, 76 Ill. 311; Harty v. Central R. R. Co., 42 N.Y. 468; Randall v. Baltimore etc. R. Co., 109 U.S. 478, 3 S.Ct. 322; 45 Am. & Eng. R. R. Cas. 36; Western etc. v. Jones, 65 Ga. 681; 8 Am. & Eng. R. R. Cas. 267; Georgia R. R. etc. v. Williams, 74 Ga. 723, 82 Ga. 400, 9 S.E. 169; 37 Am. & Eng. R. R. Cas., 481; Saldoria v. Galveston etc., 43 F. 862; Spicis v. Chesapeake etc., 45 Am. & Eng. R. R. Cas. 28; Central Branch etc. R. Co. v. Henigh, 23 Kan. 352, 33 Am. Rep. 167.) Where company has acquiesced in the use of a private way, they grant a license and must run their trains with caution. (Swift v. Staten Island etc., 45 Am. & Eng. R. R. Cas. 180, citing Barry v. New York Cent. R. Co., 92 N.Y. 289, 44 Am. Dec. 377; 13 Am. & Eng. R. R. Cas. 615; Byrne v. New York Cent. etc. R. Co., 104 N.Y. 362...