Spokane & P. Ry. Co. v. Holt

• Decision Date: 06 April 1895
• Citation: 4 Idaho 443,40 P. 56
• Parties: HOLT v. SPOKANE AND PALOUSE RAILWAY CO
• Court: Idaho Supreme Court

40 P. 56

4 Idaho 443

HOLT v. SPOKANE AND PALOUSE RAILWAY CO

Supreme Court of Idaho

April 6, 1895

DEATH OF MINOR CHILD-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE.-Where damage is claimed for death of minor child by reason of the negligence and carelessness of defendant, it must affirmatively appear from the evidence that the accident resulted from the negligence and carelessness of the defendant and that the imprudence or negligence of the plaintiff did not contribute to the result.

INSUFFICIENCY OF EVIDENCE-CASE MAY BE TAKEN FROM JURY.-When the evidence clearly shows that plaintiff has not made his case the case may be taken from the jury or the jury may be instructed to bring in a verdict in favor of the defendant.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment reversed, and judgment entered in favor of the defendant..

Ashton & Chapman and John R. McBride, for Appellant.

What is actionable negligence? We answer that negligence consists of an omission to perform a duty which the party guilty of the omission is bound to perform toward the one injured, or it consists in the doing of some act to the injury of some other which a reasonably prudent man would not do. Definitions of negligence vary in their terms, but this is the substance of all, which is accepted in the books and by the courts. (Bailey on Injuries, 406; Nicholson v. Erie Ry. Co., 41 N.Y. 525.) Does the law require that a man consult the public as to how he shall improve his own property? (Hounsell v. Smyth, 7 Com. B., N. S., 732, 97 Eng Com. L. 729.) There is not from the beginning to the end, in the testimony of this case, a word of evidence going to show the circumstances under which the accident happened. (Layman v. City of Brooklyn, 29 Barb. 234.) To entitle the plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence and imprudence of the plaintiff did not contribute to the result. (Payne v. Forty-second St. etc. R. R. Co., 40 N. Y Super. Ct. 8; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. St. 70, 12 A. 821; Sorenson v. Manesha Paper and Pulp Co., 46 Wis. 338, 14 N.W. 446; Trapnell v. Red Oak Junction, 76 Iowa 744, 39 N.W. 884.)

James W. Reid, for Respondent.

The rule in these cases rests upon the general principle that the defendant owes to the whole community the duty of abstaining from the necessary doing of anything, upon his own ground or with his own property, which shall put others in peril. (Buswell's Law of Personal Injuries, secs. 74-76, p. 98; Sioux City etc. R. R. Co. v. Stout, 17 Wall. 665; Hayes v. Michigan Cent. R. R. Co., 111 U.S. 242, 4 S.Ct. 369; Randall v. Baltimore etc. R. R. Co., 109 U.S. 478, 3 S.Ct. 322; Evensich v. G. C. & S. F. Ry Co., 57 Tex. 126, 44 Am. Rep. 586; Keefe v. Milwaukee etc. Ry. Co., 21 Minn. 207, 18 Am. Rep. 393; Kansas Cent. R. R. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203, and notes; Nagel v. Missouri P. R. Co., 75 Mo. 653, 42 Am. Rep. 418; Beck v. Carter, 68 N.Y. 83.) The appellant should have erected and maintained a fence or other suitable works to protect persons from danger on the public park that it had opened. The omission to do so was gross negligence. (Shearman and Redfield on Negligence, secs. 13, 14; Thompson on Negligence, sec. 1232; Addison on Torts, 49; Cooley on Torts, 647; Sedgwick on Damages, 563; State v. Railroad Co., 52 N.H. 528; St. Louis etc. R. R. Co. v. Terhume, 50 Ill. 151, 99 Am. Dec. 504; Marcott v. Marquette etc. R. R. Co., 49 Mich. 99, 13 N.W. 374; Mason v. Shawneetown, 77 Ill. 533.) If there be a conflict of evidence as to the facts, then the question is for the jury to decide. (1 Rorer on Railroads, 476; Delaney v. Milwaukee & St. Paul Ry. Co., 33 Wis. 67; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This case was before this court at its November term, 1893, and the decision is reported in 3 Idaho 703, 35 P. 39. The cause was remanded for a new trial, and a new trial was had upon the issues made by the original complaint and answer, before a jury, and a verdict found in favor of the respondent for the sum of $ 2,620, for which sum a judgment was entered. Thereafter a motion for a new trial was made and denied. This appeal is from the judgment and the order overruling the motion for a new trial. The appellant assigns nineteen errors alleged to have been committed in the trial of the cause.

It is insisted that the complaint does not state a cause of action. This question was passed upon in the former opinion of this court (3 Idaho 703, 35 P. 39), and the court there held that the complaint stated a cause of action. It would seem to us that that decision settled the question, so far as that complaint was concerned; but, as this question is urged with so much zeal, we have again carefully considered it, and are fully convinced that our former decision upon that point was correct.

The first error assigned is the insufficiency of the evidence to justify the verdict. The evidence shows that the well in which the plaintiff's child was drowned was upon the private grounds of the defendant, and remote from any street or sidewalk, and that at the time of the accident the child was not traveling on any public street or sidewalk, but was upon the private land of defendant, without the knowledge invitation, or consent of defendant. Nor is it shown that the defendant had any machinery or other improvements upon said lot, whatever, that would attract children there. The evidence shows that the defendant company purchased the lot upon which the well was situated with the intention of using it, with other lots, for depot grounds; that the roadbed was graded along the northerly side of said lot, along the southerly bank of the Clear Water river. Thereafter, about February, 1891, work was stopped. The contractors quit work and nothing further has been done toward the completion of said road. No depot was erected, and the lots...