Thayer v. Denver & R. G. R. Co.

• Decision Date: 31 January 1916
• Docket Number: No. 1804.,1804.
• Citation: 21 N.M. 330,154 P. 691
• Court: New Mexico Supreme Court
• Parties: THAYERv.DENVER & R. G. R. CO.

21 N.M. 330

154 P. 691

THAYER

v.DENVER & R. G. R. CO.

No. 1804.

Supreme Court of New Mexico.

Jan. 31, 1916.On Motion by Appellee to Require Clerk to Issue Mandate, Feb. 11, 1916.

Syllabus by the Court.

An objection to the allowance of an amendment should be made when leave to amend is asked, and, in order to avail himself of error in granting the amendment, the party objecting should stand on the ruling, since he waives the objection by pleading to the amendment, by going to trial thereon, or by otherwise recognizing the amended pleading.

A “willful injury” is a positive act, while an “injury resulting from negligence” is a negative act, resulting from the absence of such care as it was the duty of the defendant to use.

Negligence, whether slight, ordinary or gross, is still negligence, and is negative in its nature implying the omission of duty, and excludes the idea of willfulness. When willfulness is an element in the conduct of the party charged, the case ceases to be one of negligence.

The doctrine of “last clear chance” has no connection or relation whatever to an intentional injury. In an action predicated upon the doctrine of “last clear chance” it must appear that plaintiff was negligent, but that such negligence was not the proximate cause of the accident, but that the proximate cause thereof was the negligence or want of due care on the part of the defendant.

The plea of contributory negligence is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that the plaintiff was guilty of negligence which contributed to his injury, and the plea is bad if it denies that defendant was negligent.

Neither willful injury nor “last clear chance” can be properly pleaded in a reply, by way of confessing and avoiding an answer which sets up contributory negligence as a defense to a complaint based on simple negligence, and, where the reply sets up facts showing a right of recovery under either willful injury of “last clear chance,” it is a departure from the complaint and subject to be stricken upon motion.

A party must, under our system of pleading, recover upon the cause of action stated in his complaint, and he cannot recover upon a cause of action stated in his reply.

A “departure” in the reply consists in leaving the case made in the complaint or petition in respect to some material matter which is inconsistent with, or which does not support it.

One test laid down by the courts for determining the question as to whether a reply constitutes a “departure” from the complaint is determined by a negative answer to the inquiry whether evidence of the facts alleged in the reply is admissible under the allegations of the complaint.

An instruction not based on the evidence is erroneous, and should not be given, and, where there is no evidence in a case tending to establish liability of the defendant under the doctrine of “last clear chance,” it is error to submit such issue to the jury.

The manner and method of operating a locomotive engine, the space within which, going at a given rate of speed, it can be brought to a stop, and the proper way to check the speed and bring to a stop a runaway car are not matters of common or general knowledge, and cannot be judicially known by the court.

Where a cause of action is based upon alleged negligence of the master in failing to use due care in seeing to it that the brake upon a box car which the servant is instructed to run down the switch to a designated point, and there stop by applying the brake, is in proper repair, and the master has pleaded “assumption of risk,” it is proper for the servant to prove his lack of experience in such work for the purpose of disproving such defense, as such evidence tends to show that he did not know and appreciate the danger.

The physical ability or inability of a person to do work or perform any act may be proved by the direct testimony of the party himself.

Where, in a personal injury action, there is substantial evidence tending to show that the injuries are permanent, evidence of life expectancy is properly submitted to the jury.

It is a generally recognized rule that mortality tables, as published in standard encyclopædias, are admissible in evidence without further proof of their authenticity. Held, that the table of mortality based on American experience, found at page 885, vol. 20, Am. & Eng. Ency. of Law, was properly submitted to the jury without further or other proof.

Where an answer on its face shows that the injury received was in consequence of a risk not ordinarily incident to the employment which grew out of the master's negligence, the burden is upon the master to show that the servant knew and understood the increased danger.

Under the common law the limit of the duty of the master to the servant in the matter of place of service, of machinery, and of appliances is to exercise ordinary care to furnish him with a reasonably safe place to work and reasonably safe appliances, and to use ordinary care to keep the place and appliances in a reasonably safe condition.

Where the federal Safety Appliance Act of Congress (Act April 14, 1910, c. 160, § 2, 36 Stat. 298 [U. S. Comp. St. § 8618]) controls, the duty upon the part of a railroad company to equip its cars with and maintain efficient hand brakes thereon is absolute.

Rule 15 of this court (154 Pac. xxxviii), adopted July 15, 1915, construed. Held, that it is the duty of the clerk to issue a mandate, upon request of either party, where all the costs have been paid by either party, and that he has no right to withhold such mandate where its issuance is requested by an appellee against whom judgment for costs has been entered in this court, until such appellee pays and satisfies such judgment.

Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.

Action by Fred Thayer against the Denver & Rio Grande Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions, and issuance of mandate ordered.

Parker, J., dissenting.

Where in a railroad employe's action for injuries there was no evidence tending to establish defendant's liability under the doctrine of last clear chance, it was error to submit such issue to the jury.

In September, 1912, the appellee, with others, was employed by the appellant company at Santa Fé, N. M., to work at Delta, Colo., icing refrigerator cars. On the evening of the 6th of September, 1912, the ice house was opened, and certain cars which had been standing up above the ice house switch were placed in position for icing. The first car iced was a fruit grower's express car, No. 22445. One Jenkins was the foreman in charge of the night gang. The appellee commenced working about 7 o'clock that evening, and was working inside the first car, attending to the placing of the ice in the proper receptacles. After the first car was iced, the foreman, Jenkins, called one of the men, Santiago Quintana, and told him to take a torch and go down the ice house switch (which has a grade of about one-half of 1 per cent.) and stand about 20 yards back from the switch for the purpose of signaling the place for the car to be stopped. After Quintana had started down the switch, the foreman told the plaintiff to go up on top of the car and ride it down the switch track, stopping it at the point where he saw the light. The plaintiff asked no instructions from the foreman, nor did the foreman give him any instructions other than those stated; that is, to go up on top of the car and ride it down to the switch, stopping it at the point where he saw the light. The appellee got on top of the car, “kicked out the clipper,” and found that the brake was loose, and turned the wheel back and forth; appellee's testimony being to the effect that the brake was not set when he got on the car. Some of the men removed a wooden block from in front of the car, and with pinch bars started the car downgrade. The distance from the switch stand to the point where the first car was iced was 1,100 feet. After appellee mounted the car as testified to by him, he made no effort to set the brake until he rode to within a distance of about 25 yards from where Quintana was standing with the light. Then he tried to put on the brake to stop at that point, but could not stop the car, as the brake would not catch. After he passed Quintana, he called to Quintana to get up and help him. Just at this moment he looked back and saw an engine approaching this car. He saw his safety could only be secured by holding onto the brake, which he did until the engine and car collided. From the effects of the shock he was thrown off on the left-hand side of the track, and sustained a broken leg, his face was cut and bruised, his teeth knocked loose, his jaw on one side affected, and his hearing injured. He was picked up by either the engineer or the brakeman, placed on the rear of the engine, and carried to the depot, from 1,200 to 1,500 feet down the track. After remaining there a while, he was taken to a hotel, and the next day taken to the railroad hospital at Salida, Colo., where he remained about ten days, and was then discharged, returning to his home in Santa Fé. He testified at the time of the trial that his leg had not recovered; that he still suffered pain at the point of the break; that his hearing was gradually growing worse; and that he was not able to chew on the side of his jaw that was injured.

And the appellee further testified that at the moment he first saw the engine the rear of the engine was advancing toward the car on which he was riding. The collision occurred just east of the switch stand upon the main line. The car upon which appellee was riding had come down off the ice house switch, running through the switch point onto the main line.

There is a conflict in the testimony of the engineer and brakeman and appellee as to the...