Sweeny v. Great Falls & C. Ry. Co.
| Decision Date | 08 February 1892 |
| Citation | 29 P. 15,11 Mont. 523 |
| Parties | SWEENY v. GREAT FALLS & C. RY. CO. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; CHARLES H. BENTON Judge.
Action by George Sweeny against the Great Falls & Canada Railway Company to recover damages for personal injuries received while in its employ. From a judgment for plaintiff, defendant appeals. Reversed.
W. A Barr and Geo. W. Taylor, (F. A. Merrill, of counsel,) for appellant.
Baum & Bishop and B. Platt Carpenter, for respondent.
Action to recover damages for personal injuries alleged to have been sustained by plaintiff through negligence and carelessness on the part of defendant in the operation of its railroad. Defendant is a corporation organized and existing under the laws of this state, and owner of a line of railroad extending from Great Falls, Cascade county, to Lethbridge, together with side tracks, locomotives, and other rolling stock, etc known as the "Great Falls & Canada Railroad," which railroad defendant was operating at the time the injury complained of happened. Plaintiff at that time was in the employ of defendant as car-repairer at the terminus of said road at Great Falls, Cascade county. This action was commenced December 4, 1890, and it is alleged in the complaint that plaintiff was employed by defendant as car-repairer at the terminus of its railroad in Cascade county; and while so employed, on the 29th day of October 1890, by direction of defendant, plaintiff went under a certain car standing on defendant's railroad track, detached from any engine, and plaintiff was then and there engaged in repairing said car, and while so engaged at work, pursuant to the directions of defendant, and so situate that he, the said plaintiff, was unable to see any object upon the track; defendant carelessly and negligently, and without any notice or warning to plaintiff, backed or ran an engine against said car in such a manner as to put the same in motion; that said car, while so in motion by reason of said careless and negligent act of defendant, "ran upon and over plaintiff, severely injuring him in his shoulders, hips, legs, and body;" "that by reason thereof said plaintiff became lame and ill and wholly unable to do any kind of manual labor, and has remained lame and ill and wholly unable to do any kind of manual labor ever since, and is, as he believes, permanently injured, so that he will never be as strong to labor as before;" to his damage in the sum of $25,000, for which sum judgment is demanded. Defendant, by answer, admits its corporate existence; its ownership of the railroad named in the complaint, together with cars, locomotives, and other appurtenances thereto belonging; and admits that plaintiff was employed by defendant on or about the 29th day of October, 1890, and that on or about said date plaintiff was engaged at work on one of defendant's cars; but "denies that while the plaintiff was so engaged at his said work under one of said defendant's cars, making repairs, defendant carelessly, negligently, and without any notice or warning to said plaintiff, backed or ran an engine against said car, as in said complaint alleged, or otherwise, or at all;" and further denies "that plaintiff has sustained any injury whatsoever, as alleged in said complaint, by reason of any careless or negligent acts on the part of said defendant, and alleges that any injuries, if sustained by plaintiff," were sustained from his own carelessness and negligence; denies that by reason of said alleged injuries plaintiff became lame, ill, or wholly unable to do any kind of manual labor since said alleged injuries, or that he has remained lame, ill, or wholly unable to do any kind of manual labor since said alleged injuries; and further denies that plaintiff is permanently injured, as in said complaint alleged, or otherwise, or at all; and denies that by reason of said alleged injury, or by any other reason of said alleged injury, or by any other reason, as in said complaint alleged, plaintiff has been damaged in the sum of $25,000, or in any sum whatsoever. The action was tried January 26, 1891, to the court and a jury, and the jury found for plaintiff, and assessed his damage at the sum of $7,500; where-upon judgment was rendered in favor of plaintiff for the amount of damages assessed by the jury, together with costs. Defendant moved the court to set aside and vacate the verdict of the jury and grant a new trial on the grounds: (1) Excessive damage appearing to have been given under the influence of passion or prejudice; (2) insufficiency of evidence to justify the verdict; (3) that the verdict is against law; (4) errors in law, occurring at the trial, and excepted to by defendant. When said motion was first brought on for hearing the court refused to hear the same, from which order refusing to hear said motion a former appeal in this case was taken. 11 Mont. 34, 27 P. 347. Upon return of the case to the trial court said motion was heard, and determined by an order overruling defendant's motion for a new trial, from which order and judgment this appeal was taken.
Respondent insists now that the order of the court overruling appellant's motion for a new trial ought to be affirmed because of failure to file and serve the statement of the case under the stipulation in time to bring said motion on for hearing on or before the date stated in said stipulation. The stipulation was entered into in open court between the attorneys for the respective parties, to the effect "that defendant have until April 1st to make and serve statement, and bring on motion for new trial." The record shows that "on the 31st day of March, 1891, defendant filed with the clerk of the court and served on plaintiff's attorney statement on motion for new trial in said action," and on the same date a written motion for new trial was filed, and notice was served on plaintiff's attorney to the effect that said motion would be called up for hearing on the 1st day of April, 1891; and on that date said statement on motion for new trial was presented to the court for settlement and allowance, and the court was moved by defendant's counsel to hear and consider said motion for new trial. Thereupon plaintiff's counsel objected to the settlement and allowance of said statement and the hearing of said motion for new trial, "on the ground that service was not had upon him within time to bring said cause to a hearing on the 1st day of April, 1891, as contemplated by said stipulation." The court sustained said objection, and refused to settle and sign said statement, and refused to hear said motion for new trial, to which action by the court defendant excepted. Defendant then "offered to move the court to extend the time for the benefit of the plaintiff, to enable him to prepare and serve any amendments he desired to make to said statement of the case, and to extend the time for the settlement of said statement, and for the hearing of said motion for new trial." The court refused to make any order to the effect suggested in this latter request, and intimated that defendant had failed to comply with said stipulation by reason of having failed to serve the statement of the case in time for plaintiff to have the 10 days provided by statute (section 298, Code Civil Proc.) within which to propose amendments thereto, if he desired, before the 1st of April. Afterwards, on the 11th day of April, 1891, no amendments having been proposed by plaintiff, defendant presented said statement on motion for a new trial to the judge of said court for settlement and allowance, and he settled, allowed, and certified the same. But when the motion for new trial was called up for hearing, after notice to plaintiff, the court refused to hear said motion, and did not hear and pass upon the same until after the case was remanded by this court in the former appeal, cited supra.
The only question now before us concerning this point of practice will be determined by a construction of said stipulation. It appears from the record that said stipulation was made in open court, and from the recital it seems that no formal writing was signed by the parties stipulating; but a brief entry appears to have been made in the minutes of the court to the effect "that defendant have until April 1st to make and serve statement and bring on motion for a new trial." We think that the court ruled correctly in holding that said statement ought not to be settled or allowed, and that the motion...
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