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

• Decision Date: 12 September 1919
• Docket Number: No. 2316.,2316.
• Court: New Mexico Supreme Court
• Parties: THAYERv.DENVER & R. G. R. CO.

25 N.M. 559

185 P. 542

THAYER

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

No. 2316.

Supreme Court of New Mexico.

Sept. 12, 1919.Rehearing Denied Nov. 29, 1919.

Syllabus by the Court.

Special findings of a jury will not justify the setting aside of a general verdict unless such findings are in irreconcilable conflict with the general verdict.

The special interrogatory submitted should call for findings upon the material issues raised by the pleadings, and, before such findings will overthrow the general verdict, they must be antagonistic thereto upon the ultimate issue or issues necessarily determined by the general verdict.

The answer by the jury to an interrogatory, “We don't know,” is equivalent to a finding against the party holding the affirmative upon such fact.

In an action against a railroad company for injuries alleged to have been incurred by reason of a violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) by the railroad company, the defense of assumption of risk and contributory negligence are eliminated by the federal Employers' Liability Act (sections 8657-8665).

Under the federal Safety Appliance Act, an absolute and unqualified duty is imposed upon the carrier to see that its cars are equipped with efficient hand brakes.

The words “efficient,” “inefficient,” and “defective” defined. Held, that the word “defective” is not the antonym of “efficient,” and, where the federal Safety Appliance Act requires all cars to be equipped with efficient hand brakes, a finding by the jury, in answer to a special interrogatory, that the hand brake rigging on the car in question was not in any manner defective, is not equivalent to a finding that the car was equipped with an efficient hand brake.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Defective; Efficient.]

A finding that a hand brake upon a railroad car was defective did not override a general verdict which was necessarily based upon a finding that the hand brake was inefficient.

Appeal from District Court, Santa Fé County; Leahy, Judge.

Action by Fred W. Thayer against the Denver & Rio Grande Railroad Company. General verdict for plaintiff, defendant's motion for judgment on the special interrogatories and answers thereto sustained, and judgment entered for defendant, and plaintiff appeals. Reversed and remanded, with instructions to set aside the judgment for defendant and to overrule the motion, etc.

The special interrogatory submitted should call for findings upon the material issues raised by the pleadings, and before such findings will overthrow the general verdict, they must be antagonistic thereto upon the ultimate issue or issues necessarily determined by the general verdict.

Catron & Catron and E. P. Davies, all of Santa Fé, for appellant.

E. R. Wright and A. B. Renehan, both of Santa Fé, for appellee.

ROBERTS, J.

This is the second appeal in this case, the former opinion being reported in 21 N. M. 330, 154 Pac. 691. There a judgment in favor of the appellant in this case was reversed and the cause remanded for a new trial. After remand to the district court, Thayer amended his complaint so as to state a cause of action under the Safety Appliance Act of 1893 (Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. §§ 8605-8612]) as amended by the Act of Congress of April 14, 1910, c. 160, 36 Stat. 298 (U. S. Comp. St. §§ 8617-8619, 8621-8623), and the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The material paragraphs of the amended complaint, after stating the facts leading up to the alleged injury, alleged the facts as follows:

“(4) That plaintiff charges that the hand brake and hand brake appliance or apparatus on said car, at the time he attempted to set the same and retard the speed of said car and stop said car as aforesaid, was defective and unsafe, and was inefficient and not adapted to the purpose for which it was intended to be used. That the defendant was negligent in not maintaining the said car with efficient hand brakes and was negligent in hauling, permitting to be hauled, in using, permitting to be used, and in moving or permitting to be moved the said car, upon its line of railway, said car at such time not being equipped with efficient hand brakes. That the defective condition of such inefficient hand brakes upon the said car could by the exercise of ordinary care and caution have been ascertained and repaired. That the specific defect in said inefficient hand brake on said car was at the time of the accident and injury to plaintiff and is at the present time to plaintiff unknown.

(5) That the said injury to plaintiff resulted from the negligence of the officers, agents, and employés of said defendant company, as hereinabove set forth, and by reason of the defect and inefficient band brake and hand brake equipment and appliances on said car due to the negligence of the defendant as hereinabove set forth; and from the hauling, permitting to be hauled, using, permitting to be used, and moving, or permitting to be moved the said car aforesaid so equipped with defective and inefficient hand brake, hand brake appliances and apparatus, upon its said line of railway.

(6) That the carelessness and negligence of the defendant, hereinabove set forth and the hauling and permitting to be hauled, the using or permitting to be used, or the moving or permitting to be moved of said car aforesaid, upon its line of railroad, and the defective and inefficient hand brake and hand brake appliance and equipment hereinabove set forth, were the proximate cause of plaintiff's injury.”

An answer was filed setting up various defenses and a general denial. Contributory negligence was also pleaded. A reply was filed and the case was tried to a jury. Appellant testified as a witness, and among other facts stated that he had had some previous experience as a brakeman, or in setting brakes on a railroad car; that when he attempted to set the brakes on the car in question, in the ordinary manner, the brakes would not “take hold”; that you could tell, by the vibrations in the brake, as to whether it was taking hold of the wheels and functioning, when the brake was applied; that the brake in question did not respond when he attempted to operate it and did not take hold of the wheels and function, and the application had no effect whatever on the speed of the car. The above is not in the exact language of the witness, but is the substance of his testimony. Other witnesses also testified that the man applying a hand brake on a railroad car could tell whether it was functioning by the vibrations in the brake. There was also evidence on the part of appellee to the effect that appellant had not properly applied the brake, in that he had permitted the car to acquire too much “headway” before attempting to apply the brakes.

The court instructed the jury as to the federal Employers' Liability Act, which gives a cause of action for injuries (eliminating all that is not applicable to this case) suffered, “by reason of any defect or insufficiency, due to its negligence, in its cars, engines,” etc.

The court also instructed as to the Safety Appliance Acts and the particular portion thereof applicable hereto, namely:

“That it is unlawful for any common carrier engaged in interstate commerce by railroad to permit to be hauled or used on its line any box or other house car which is not equipped with efficient hand brakes.”

After announcing these rules of law, the court at the request of the appellant gave the following instructions:

“The court further instructs you that if you find that the car in question, being the car from which the plaintiff was thrown, if you find that he was so thrown from said car, was a car being used in interstate commerce by a common carrier by railroad engaged in such interstate commerce, and if you find that said car at the time of the alleged injury, if any there was, was being used, moved, or hauled, or was permitted by the defendant company, or its employés, to be moved, used, or hauled on its line of railroad in such interstate commerce, and that said car was not then equipped with efficient hand brakes, if you so find that it was not so equipped with efficient hand brakes, then you are instructed that the plaintiff is not required to show negligence on the part of the defendant company or any of its officers or employés.

The court further instructs you that in event you should find from the evidence that the plaintiff was at the time of the injury, if any there be, engaged in interstate commerce, and the defendant was at such time a common carrier by railroad engaged in interstate commerce, and that at such time the defendant company was using or permitting to be used, hauling or permitting to be hauled, or moving or permitting to be moved, a car loaded with interstate commerce, upon its line of railroad, and that such car at such time was car No. 22445, Fruit Growers' Express, and was not equipped with efficient hand brakes, then and in that event you shall find the issues in favor of the plaintiff and assess his damages, if any there be.”

All of the foregoing instructions were given to the jury at the request of the appellant. Upon the request of the appellee, the following instruction was given:

“You are instructed that in cases of this kind you cannot infer or presume that the brakes were inefficient, unsafe, or defective from the sole fact, if it is a fact, that the plaintiff, Thayer, was not able to set the brake upon the car in question in time to prevent its collision with the engine upon the main line. You must go further and be able to say from the evidence that the brake was not in condition at the time of the accident to have stopped the car when properly applied. In other words, that because of some defect or insufficiency in the hand brake or hand brake rigging, that such hand...