Southern Pacific Co. v. Tomlinson

• Court: Arizona Supreme Court
• Writing for the Court: SLOAN, J.--
• Citation: Southern Pacific Co. v. Tomlinson, 4 Ariz. 126, 33 P. 710 (Ariz. 1893)
• Decision Date: 16 June 1893
• Docket Number: Civil 354
• Parties: THE SOUTHERN PACIFIC COMPANY, Defendant and Appellant, v. BERTHA TOMLINSON, Plaintiff and Appellee

33 P. 710

4 Ariz. 126

THE SOUTHERN PACIFIC COMPANY, Defendant and Appellant, v. BERTHA TOMLINSON, Plaintiff and Appellee

Civil No. 354

Supreme Court of Arizona

June 16, 1893

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey Judge.

Affirmed.

W. R Stone, and H. N. Alexander, for Appellant.

The complaint alleges that is was by no fault or negligence of Tomlinson's that the injury was caused. This is a material allegation, and must be proved as laid. In some states it is held that it is not necessary to allege or prove on the part of the plaintiff that the person injured was exercising proper care; that the defendant has the burden of proof to establish the contributory negligence, while in others the rule is, that not only must the plaintiff prove negligence on the part of the defendant, but must also prove that the person injured was without fault, to entitle him to recover,--at least, must make a prima facie case to entitle it to go to the jury; but where the allegation is made a material allegation in the complaint it must be proved. Weeks on Damnum Absque Injuria (p. 245) says: "In an action for injuries, where a party crossing a railroad track is injured by a collision with a train, the fault is prima facie his own, and he must show affirmatively that his fault or negligence did not contribute to the injury before he is entitled to recover for such injury." Cincinnati etc. Ry. Co. v. Howard, 124 Ind. 280, 19 Am. St. Rep 96, 24 N.E. 892; Hinkley v. Cape Cod Ry. Co., 120 Mass. 257; Murphy v. Cape Cod Ry. Co., 45 Iowa 661; Abbott's Trial Evidence, pp. 594, 595, 596; Houston etc. Ry. Co. v. Cowser, 57 Tex. 293. "Upon a motion to direct a verdict for the defendant, the question is whether, if a verdict were rendered for the plaintiff upon his evidence, the court would set it aside as being contrary to the evidence." Held, that "where the plaintiff was familiar with the crossing, and where he had a fair view of the railroad from the depot to the crossing, about seventy rods, and could have seen the track for a distance any time after approaching within six hundred feet of the crossing, it was contributory negligence for him to drive upon the track without looking for an approaching train, and he could not recover, even if the engineer was also negligent in running the train at a great and dangerous rate of speed and failing to give warning of his approach by sounding the whistle or ringing the bell." Schofield v. Chicago etc. Ry. Co., 2 McCrary, 268, 8 F. 488; same case affirmed in 114 U.S. 615, 5 S.Ct. 1125; Harty v. Central Ry. Co., 42 N.Y. 468; Warner v. New York Central Ry. Co., 44 N.Y. 465; Wilcox v. Rome etc. Ry. Co., 39 N.Y. 358, 100 Am. Dec. 440; Indianapolis etc. R. Co. v. Blackman, 63 Ill. 117; Wichita and W. Ry. Co. v. Davis, 37 Kan. 743, 1 Am. St. Rep. 275, 16 P. 78; Mynning v. Detroit etc. Ry. Co., 64 Mich. 93, 8 Am. St. Rep. 804, 31 N.W. 147.

"Where in an action for negligence the plaintiff by his own showing has been guilty of negligence, a compulsory nonsuit should be granted." Delaney v. Milwaukee etc. Ry. Co., 33 Wis. 67; Randall v. Baltimore etc. Ry. Co., 109 U.S. 478, 3 S.Ct. 322; Spicer v. Chesapeake etc. Ry. Co., 11 L. R. A. 385, 34 W.Va. 514, 12 S.E. 553; Studley v. St. Paul etc. Ry. Co., 48 Minn. 249, 51 N.W. 115; State v. Maine Central Ry. Co., 76 Me. 276; Tolman v. Syracuse etc. Ry. Co., 98 N.Y. 198, 50 Am. Rep. 649; Mynning v. Detroit etc. Ry. Co., 64 Mich. 93, 8 Am. St. Rep. 804, 31 N.W. 147, 23 Am. & Eng. R. R. Cases, 317.

"Plaintiff cannot recover for injuries from another's negligence unless he himself was using due care at the time of the injury; and the burden is on him to prove affirmatively that he used such care." Gaynor v. Old Colony Ry. Co., 100 Mass. 308, 97 Am. Dec. 96; New Orleans etc. R. R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478, and note; New Jersey Express Co. v. Nichols, 33 N. J. L. 434, 97 Am. Dec. 722; Nixon v. Chicago etc. Ry. Co., 84 Iowa 331, 51 N.W. 157; Haines v. Illinois etc. Ry. Co., 41 Iowa 227; Korrady v. Lake Shore etc. Ry. Co., 131 Ind. 261, 29 N.E. 1069; Baltimore etc. Ry. Co. v. Depew, (Ohio) 12 Am. & Eng. R. R. Cases, 64; Union Pacific Ry. Co. v. Adams, 33 Kan. 427, 6 P. 529, 19 Am. & Eng. R. R. Cases, 376; McAdoo v. Richmond etc. Ry. Co., 105 N.C. 140, 11 S.E. 316, 41 Am. & Eng. R. R. Cases, 524; Cincinnati etc. Ry. Co. v. Howard, 124 Ind. 280, 19 Am. St. Rep. 96, 24 N.E. 892, 8 L. R. A. 594; Maryland v. Pittsburg etc. R. R. Co., 123 Pa. St. 487, 10 Am. St. Rep. 541; Memphis etc. Ry. Co. v. Womack, 84 Ala. 149, 4 So. 618; Spicer v. Chesapeake etc. Ry. Co., 34 W.Va. 514, 12 S.E. 553, 45 Am. & Eng. R. R. Cases, 28.

The plaintiff had no authority to remit anything from the verdict for the beneficiaries.

"The amount recovered in the one suit for causing the death of the husband must be apportioned by the jury among those entitled to the judgment." Galveston etc. Ry. Co. v. Le Gierre, 51 Tex. 189; March v. Walker, 48 Tex. 372; Houston etc. Ry. Co. v. Bradley, 45 Tex. 171; East Line etc. Ry. Co. v. Culberson, 68 Tex. 664, 5 S.W. 820.

The judgment is not based on the verdict of the jury, but solely on the offer of the nominal plaintiff and the consent of the court, and we contend that the verdict as presented to the court by the jury should be allowed to stand, or that if it was so excessive as to show that it was rendered under the influence of passion, prejudice, or other motive, and not sustained by the evidence, then it should have been set aside and a new trial granted; that it was error for the court to allow the nominal plaintiff to reduce and remit any portion of the verdict except the sum awarded to her by such verdict. Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696; Koeltz v. Bleekman, 45 Mo. 320; Nudd v. Wells, 11 Wis. 426; Potter v. Chicago etc. Ry. Co., 22 Wis. 586; Goodno v. City of Oshkosh, 28 Wis. 300. "It is the judgment of the jury, and not of the court, which is to determine the damages in actions for personal injuries." Sargent v. ___, 5 Cow. 119; McConnell v. Hampton, 12 Johns. 234.

"But if the verdict is grossly excessive and unwarranted by the evidence, it cannot be cured by a remittitur." Bell v. Morse, 48 Kan. 601, 29 P. 1086; Atchison etc. Ry. Co. v. Cone, 37 Kan. 567, 15 P. 499; Steinbuchel v. Wright, 43 Kan. 307, 23 P. 560.

"It is an invasion of the rights of the jury for a judge to require a remittitur as a condition to his overruling a motion for a new trial on the ground of an excessive verdict, and his only course is to grant a new trial." Gulf etc. Ry. Co. v. Coon, 69 Tex. 730, 7 S.W. 492.

Baker & Campbell, and G. C. Israel, for Appellee.

The court properly refused at the close of plaintiff's case to instruct the jury to find for the defendant. While we introduced no proof of the conduct of the deceased at the exact time of the injury, yet having affirmatively shown negligence on the part of the defendant, the jury had a right to infer ordinary care and diligence on Tomlinson's part. To hold otherwise would be in effect to presume negligence on the part of one in excuse of negligence on the part of the other. Gay v. Winter, 34 Cal. 153; Johnson v. Hudson River R. R. Co., 5 Duer, 21; Button v. Hudson River R. R. Co., 18 N.Y. 248; Hopkins v. Orr, 124 U.S. 510, 8 S.Ct. 590; Arkansas etc. Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458.

Sloan, J. Gooding, C. J., and Wells, J., concur.

OPINION

The facts are stated in the opinion.

SLOAN, J.--

This action is brought under the provisions of title 36 of the Revised Statutes of 1887, entitled "Injuries Resulting in Death." Plaintiff, Bertha Tomlinson, as the widow of Thomas Tomlinson, deceased, brought suit in her own name against the Southern Pacific Company, for the benefit of herself, as surviving wife, as well as for the children and parents of the deceased, to recover damages sustained by the death of said deceased, which occurred, as alleged, by reason of the negligence of the defendant. In addition to a special verdict, the jury returned a verdict for plaintiff in the sum of fifty thousand dollars, which amount was apportioned among the beneficiaries named in the complaint as follows: Bertha Tomlinson, plaintiff, eight thousand dollars; Fenton Tomlinson, father, five thousand dollars; Mary Tomlinson mother, five thousand dollars; Alice Tomlinson, child, eight thousand dollars; Fenton Tomlinson, child, eight thousand dollars; Howard Tomlinson, child, eight thousand dollars; Baby Tomlinson, child, eight thousand dollars. The defendant moved the court to set aside the verdict, and grant a new trial, on the ground, among others that the verdict was excessive, and rendered under the influence of passion or prejudice. Whereupon plaintiff, by her attorneys, filed a remittitur, which was in words and figures following, to wit: "Comes Bertha Tomlinson, on behalf of herself and the others interested herein, and remits from the verdict heretofore rendered therein, in the sum of $ 50,000, the following sums: Bertha Tomlinson, $ 8,000, remitted to $ 6,000; Alice Tomlinson, $ 8,000, remitted to $ 3,000; Fenton Tomlinson, $ 8,000, remitted to $ 3,000; Howard Tomlinson, $ 8,000, remitted to $ 3,000; Baby Tomlinson, $ 8,000, remitted to $ 3,000; Fenton Tomlinson, father, $ 5,000, remitted to $ 1; Mary Tomlinson, mother, $ 5,000, remitted to $ 1,--thereby making a total remittance of $ 31,998, and allowing the verdict to stand in the sum of $ 18,002." The court then overruled the motion for a new trial, and entered judgment for plaintiff in accordance with the remittitur. It is alleged by appellant that the court erred in allowing the remittitur, and entering judgment in accordance therewith--First, for the...