The Pullman Company v. Finley
| Citation | 125 P. 380,20 Wyo. 456 |
| Decision Date | 01 July 1912 |
| Docket Number | 691 |
| Parties | THE PULLMAN COMPANY v. FINLEY |
| Court | United States State Supreme Court of Wyoming |
ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.
The action was brought by Anna Finley against the Pullman Company to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant in failing to see that she was properly carried from the defendant's sleeping car at her destination, and carrying her past said destination to another station. Verdict and judgment was for the plaintiff and the defendant brought error. The material facts are stated in the opinion.
Affirmed.
Charles W. Burdick and Burgess & Kutcher, for plaintiff in error.
The plaintiff was erroneously permitted to file her amended petition, raising new issues and presenting new matter within three days of the date set for trial by agreement of the parties, and it was also error to deny the application of defendant for a continuance to give the defendant time to properly prepare for and defend against the new issues and matters thus raised. (Donley v. Scanlon, (Ind.) 17 N.E. 158; Gurr v. Carter, (Ga.) 58 S.E. 488; Ry Co. v. Stocking, (Miss.) 10 So. 480; Ry. Co. v Smith, (Tex.) 29 S.W. 186; Laundry Co. v. Employers &c. (Minn.) 117 N.W. 506; Ry. Co. v. Power, (Ark.) 53 S.W. 572.)
Under the pleadings defendant was entitled to judgment, and its motion therefor was improperly denied, since no reply was filed by the plaintiff answering or denying the allegation in the second defense of the answer that the plaintiff's failure to disembark from the car at her destination was not due to any fault of the defendant, but to the fault and negligence of the plaintiff in failing to properly arrange for her reception and assistance upon her arrival at her destination. Since contributory negligence is a defense to be affirmatively alleged, when alleged in the answer the plaintiff must reply denying the same, or it must be taken as true for the purpose of the action, even though the petition may contain averments expressly negativing negligence on plaintiff's part. (Ry. Co. v. Cook, (Wyo.) 102 P. 657; Hudson v. Ry. Co., (Mo.) 14 S.W. 15; State v. District Court, (Mont.) 79 P. 546; Louisville &c. Co. v. Copas, (Ky.) 26 S.W. 179; Ry. Co. v. Wall, (Ky.) 51 S.W. 168; Brooks v. Louisville &c. Co., (Ky.) 71 S.W. 507; Louisville &c. Co. v. Paynter, (Ky.) 82 S.W. 412; Smith v. Louisville &c. Co., (Ky.) 112 S.W. 874.) The allegation of negligence in general terms is sufficient, in the absence of a motion to make more definite and certain. (Brown v. Ry. Co., (Wash.) 47 P. 890; C. B. & Q. R. Co. v. Oyster, (Neb.) 78 N.W. 359; Ry. Co. v. Smith, (Ky.) 39 S.W. 832; Neier v. Ry. Co., (Mo.) 1 S.W. 387; Stewart v. Ry. Co., (Tex.) 78 S.W. 979; Borden v. Falk Co., (Mo.) 71 S.W. 478; Conrad v. De Montcourt, (Mo.) 49 S.W. 805.)
The testimony of the nurse who accompanied plaintiff on her journey to the effect that if she had not been carried past her destination she would have been in a condition to be operated on in a week after her arrival, was erroneously admitted, since the witness was not qualified to testify as an expert upon the subject. (Dashiell v. Griffith, (Md.) 35 A. 1094; People v. Rice, (N. Y.) 54 N.E. 48.) The cross-examination of the witness who was porter on defendant's car, as to the wages which he received was improper and the objections thereto should have been sustained. The admission of the testimony was most prejudicial. It was also error and prejudicial to permit the plaintiff to testify as to a conversation between the train conductor and the plaintiff's nurse to the effect that this defendant would have to pay the damage. Proof of statements made by bystanders, after the accident, commenting upon the occurrence, or expressing opinions, are inadmissible. (Thompson on Neg., secs. 7731, 7733; 17 Cyc., 219; Felska v. R. Co., (N. Y.) 46 N.E. 613; Sullivan v. Seattle E. L. Co., (Wash.) 97 P. 1109; Hughes v. R. Co., (Ky.) 48 S.W. 671; Dwalt v. Ry. Co., (Tex.) 55 S.W. 534; Murray v. R. Co., 16 Utah 356; 52 P. 596; Kaelin v. Comm., (Ky.) 1 S.W. 594; Allen v. State, (Ala.) 20 So. 490; State v. Ramsey, (La.) 20 So. 904.)
It was error to give an instruction which assumed the existence of material facts in issue. The instruction invaded the province of the jury, which stated that the suffering by plaintiff of inconvenience, distress, pain, expense, &c., was not denied. The matter was in issue, and to some extent was denied by a witness for the defendant. The error in assuming material facts is not cured, even though there is no conflict in the evidence, as there might be a question as to the weight and credit to be given the testimony.
A verdict contrary to, or in disregard of, evidence which was not improbable or inconsistent, and does not contradict it or discredit it will be set aside. (29 Cyc., 830b.) While the jury may reasonably judge as to the credibility of the witness, yet if the conclusion of the jury appears to have been arbitrary or capricious, or the jury plainly disregarded the uncontradicted testimony of a witness who was not impeached or discredited, even though a party to the action, a new trial will be granted. (29 Cyc., 830c.) Where facts found in a special finding are essential to a right of recovery, and such finding is not sustained by the evidence or is contrary thereto, a new trial should be granted. (29 Cyc., 836.) A verdict should be set aside where the jury has been unable to agree upon a special finding respecting a determinative fact. (29 Cyc., 836.) And where the findings on an important, though not decisive fact, are contrary to the evidence and show that the evidence was not considered fairly and impartially there should be a new trial. (29 Cyc., 837.) Under the rules thus stated the answers of the jury to the special interrogatories in connection with their general verdict are such as to entitle the defendant to a new trial. This is particularly so as to the answer, "We don't know." (Darling v. West, (Ia.) 1 N.W. 531; Lytton v. Ry. Co., (Ia.) 28 N.W. 628; Wilson v. Ry. Co., (Mich.) 23 N.W. 627; Norfolk B. S. Co. v. Koch, (Neb.) 71 N.W. 1015; Ry. Co. v. McGraw, (Colo.) 45 P. 383.) It is evident that although the jury attempted to square their answers to their interrogatories with their verdict, they exposed by their answers the unfair and illegal manner in which the general verdict was reached. The verdict and judgment are not supported by the special findings of the jury. The answer "We don't know" is equivalent to a special finding in favor of the defendant upon the question submitted. (Ry. Co. v. Swarts, (Kan.) 48 P. 953; Kalina v. Ry. Co., (Kan.) 76 P. 438; Ry. Co. v. Peavy, (Kan.) 8 P. 780; Bank v. Barnes, (Mich.) 49 N.W. 475; Flannery v. R. Co., 23 Mo.App. 120.)
The verdict is not sustained by the evidence. Plaintiff's right of action is predicated upon defendant's alleged negligence in carrying her past her destination. What occurred at the station to which she was carried and during her return concerns only the question of damages suffered by her as a consequence of being taken beyond her destination, and does not affect the question of defendant's liability for not assisting her from the train at her proper destination. Plaintiff's whole case rests upon the alleged duty of the defendant to assist her from the train, and its violation of such duty. The evidence discloses that the defendant's conductor and porter were willing to assist her from the train, but failed to do so only because there was no stretcher or other suitable means at the station with which to take her from the car. The plaintiff should have made proper arrangements to have those necessary things at the station upon her arrival. It appears that defendant's employes did all that they could under the circumstances, and in view of the undisputed facts, even though the conductor may have told the plaintiff to remain in the car until the porter came for her does not show that the conductor and porter were guilty of negligence. The conductor had a right to suppose that all arrangements were complete and that the ambulance and plaintiff's friends would appear upon the arrival of the train to assist in response to her telegram which she had told the conductor she had sent from Sheridan.
At any rate, when the train arrived the first and proper thing for the conductor to do was discharge the other passengers to get them out of the way in order that plaintiff might be handled safely and without danger. Having done so, then upon the starting of the train his signal to stop was disregarded by the train conductor, and it is clear that the plaintiff was carried past her destination without any fault of the defendant or its employes. The whole trouble was caused by the failure of plaintiff's friends to arrive at the depot and the delay of the ambulance. That was not a fault of the defendant.
There was gross misconduct on the part of counsel for plaintiff which should result in a new trial. .)
The jury fixed the amount of plaintiff's recovery by...
To continue reading
Request your trial
-
Espy v. State
...State v. Burke (Wash.) 215 P. 31; 16 R. C. L. 299, 300. The affidavits of jurors cannot be received to impeach their verdict. Pullman Company v. Finley, 20 Wyo. 456. have not specifically pointed out wherein instructions numbered 15, 17, 18, 19, 20 and 21 were erroneous. We believe said ins......
-
Bond v. State ex rel. Wilson
...to the affidavit of an attorney, Gustavenson v. State, 10 Wyo. 300, or the affidavits of jurors, Bunce v. McMahon, 6 Wyo. 24; Pullman Co. v. Findley, 20 Wyo. 456, admissible to explain, impeach or interpret a verdict, aside from the limitations inherent in the nature of the state as the rep......
-
Gillespie v. Board of Com'rs of Albany County
... ... was competent. 1 Elliott on Roads and Streets, 4th Ed., Sec ... 287; Light Company v. Creed (Mo.) 32 S.W.2d 783; ... Yolo Water & Power Co. v. Hudson (Cal.) 186 P. 772; ... not correct statements of the law. Morrison v ... Development Co., 38 Wyo. 190; Pullman Company v. Finley, ... 20 Wyo. 456 ... Glenn ... S. Parker, W. O. Wilson and Bard ... ...
-
State v. Radon
...not permitting defendant by cross-examination to show the interest of the witness John Radulovich in the result of the hearing. Pullman Co. v. Finley, 20 Wyo. 473; State Wilson, 32 Wyo. 37. The court erred in refusing to receive evidence that defendant was acting in self-defense at the time......