York v. Pacific & Northern Ry. Co.

CourtUnited States State Supreme Court of Idaho
Citation8 Idaho 574,69 P. 1042
Decision Date27 June 1902

NONSUIT.-A motion for a nonsuit should not be granted when there is any evidence to sustain the allegations of the complaint.

CONFLICTING EVIDENCE-VERDICT OF JURY.-Where there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed.

DAMAGES.-Where it is shown that the death of a child is caused by negligence of the defendant, and the jury find a verdict for the sum of $2,000, held, not to be excessive damages.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Affirmed. Costs to respondent.

J. H Richards and N. M. Ruick, for Appellant.

Facts are fully stated in the opinion. The first question under the testimony, is, Does this table, constructed as is shown by the testimony and situate as shown, constitute such an attractive, alluring and dangerous instrument as renders the owner liable to trespassers for any injury they may receive from playing with such instrument? (McEachern v. Boston etc. R. Co., 150 Mass. 515, 23 N.E. 231; Curley v Missouri P. R. R., 98 Mo. 13; Chicago etc. R. R. v McLaughlin, 44 Ill. 215; Pennsylvania R. R. v. Lewis, 79 Pa. 33; Hestonville etc. R. R. v. Connell, 88 Pa. 522, 32 Am. Rep. 472; Nolan v. New York etc. R. R., 53 Conn. 461, 4 A. 106; St. Louis etc. R. R. v. Bell, 81 Ill. 76, 25 Am. Rep. 269.) As to the question of the negligence and imprudence of respondent: This is an action brought by the father of the deceased, and the rule is well established in this country, that where the action is brought by the parent to recover damages for the death of his minor child, his contributory negligence will defeat a recovery. (Atlanta etc. R. R. Co. v. Gravitt, 93 Ga. 369, 44 Am. St. Rep. 145, 20 S.E. 550, 26 L. R. A. 557; Souix City etc. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745, 43 L. R. A. 148; Ritz v. City of Wheeling, 45 W.Va. 262, 31 S.E. 993; Gillispie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Nolan v. New York etc. R. Co., supra; Walsh v. Fitchburg R. Co., 145 N.Y. 301, 45 Am. St. Rep. 615, 39 N.E. 1068, 27 L. R. A. 725; Daniels v. New York etc. R. Co., 154 Mass. 349, 26 Am. St. Rep. 253, 28 N.E. 283, 13 L. R. A. 248; Frost v. Eastern R. Co., 64 N.H. 220, 10 Am. St. Rep. 396, 9 A. 790; Missouri etc. Ry. Co. v. Edwards, 90 Tex. 65, 36 S.W. 430, 32 L. R. A. 825.) "The verdict as to the amount of damages given is not sustained by the evidence." This is a sufficient specification where excessive damages are relied upon as one of the grounds of error. (Dybruntz v. Jessup, 54 Cal. 118.) In an action of this character, the damages recoverable could only include the probable value of the services of the deceased from the time of his death until he had attained his majority, considering the cost of his support and maintenance during the early and helpless part of his life. This would be the limit of possible recovery. (Morgan v. Southern P. Co., 95 Cal. 501, 30 P. 603; Mayhew v. Burns, 103 Ind. 328, 2 N.E. 797; Tiffany on Death by Wrongful Act, sec. 164, note 57.) Every party to an action at law has a right to insist upon a verdict or finding based upon the law and evidence in the case, and not, in the absence of the evidence, upon mere inference, conjecture or personal experience. (Spokane etc. Ry. Co. v. Holt, 4 Idaho 443, 40 P. 57; Sherman v. Lumber Co., 77 Wis. 14, 45 N.W. 1082; Pauley v. Steam Gauge etc. Co., 131 N.Y. 90, 29 N.E. 999, 15 L. R. A. 198; Gano v. Prindle, 6 Kan. App. 851, 50 P. 110; Ralston v. Plowman, 1 Idaho 596; Fox v. Oakland Consol. St. Ry., 118 Cal. 55, 62 Am. St. Rep. 216, 50 P. 28; Rajnowski v. Detroit etc. Co., 74 Mich. 15, 41 N.W. 849.) Some testimony should have been offered as a basis for the verdict. (Carpenter v. Buffalo etc. R. Co., 38 Hun, 116; Hutchins v. St. Paul etc. Ry. Co., 44 Minn. 5, 46 N.W. 79; Gunderson v. Northwestern etc. Co., 47 Minn. 161, 49 N.W. 694; Diebold v. Sharpe, 19 Ind.App. 474, 49 N.E. 839; Burk v. Arcata etc. R. R. Co., 125 Cal. 364, 73 Am. St. Rep. 32, 57 P. 1065; Denver etc. R. Co. v. Spencer, 27 Colo. 313, 61 P. 609; Missouri etc. Ry. Co. v. Moffat, 60 Kan. 113, 72 Am. St. Rep. 343, 55 P. 840; St. Louis etc. R. Co. v. Blurn, 10 Kan. App. 468, 62 P. 428; Atchison etc. Ry. Co. v. Ryan, 62 Kan. 682, 64 P. 605; Cherokee etc. Co. v. Limb, 47 Kan. 469, 28 P. 182; Hurst v. Detroit City Ry., 84 Mich. 539, 48 N.W. 45; Cooper v. Lake Shore etc. Ry. Co., 66 Mich. 261, 11 Am. St. Rep. 482, 33 N.W. 313; Hall v. Galveston etc. Ry. Co., 39 F. 21; Serensen v. Northern etc. Ry. Co., 45 F. 407.)

Rhea & Lovejoy, for Respondent.

We insist that counsel for appellant are as wide of the mark in the citation of authorities in support of their contention, as we believe they are not in point, and we are sure that they are questionable, if not against the clear weight of authority. They concern the admission of collateral facts, and all seem to be to the effect that evidence of former similar accidents at the same place is inadmissible. But a contrary doctrine is maintained by a long list of authorities, and among them the following: District of Columbia v. Ames, 107 U.S. 519, 2 S.Ct. 840, 27 L. ed. 618; Quinlan v. City of Utica, 11 Hun, 217, 74 N.Y. 603; City of Chicago v. Powers, 42 Ill. 168; Augusta v. Hafers, 61 Ga. 48, 34 Am. Rep. 95; House v. Metcalf, 27 Conn. 630; Calkins v. Hartford 33 Conn. 57, 87 Am. Dec. 194; Jones on Evidence, secs. 163, 164; Darling v. Westmoreland, 52 N.H. 401, 13 Am. Rep. 55; Hill v. Portland etc. Co., 55 Mo. 439; Kent v. Lincoln, 32 Vt. 591, 10 L. ed. 590; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98. The next contention of counsel for appellant is that the court erred in overruling its motion for a judgment of nonsuit against the plaintiff. (Ayers v. Hartford Fire Ins. Co., 17 Iowa 176, 85 Am. Dec. 553; Jennings v. First Nat. Bank, 13 Colo. 417, 16 Am. St. Rep. 210, 22 P. 777; Alpers v. Hunt, 86 Cal. 78, 21 Am. St. Rep. 17, 24 P. 846; Kelly v. Bennett, 132 Pa. 218, 19 Am. St. Rep. 594, 9 A. 69; Mobly v. Bruner, 59 Pa. 481, 98 Am. Dec. 360; Borough v. Neff, 102 Pa. 476, 48 Am. Rep. 213; United States Telegraph Co. v. Wenger, 55 Pa. 262, 93 Am. Dec. 751; Bradley v. Poole, 98 Mass. 169, 93 Am. Dec. 144.) "When evidence tends to establish a prima facie case, it is error to enter a judgment of nonsuit." (Corbalis v. Township, 132 Pa. 9, 19 Am. St. Rep. 588, 19 A. 44; Maynes v. Atwater, 88 Pa. 496; Felton v. Millard, 81 Cal. 540, 21 P. 533, 22 P. 750; Zilmer v. Gerichten, 111 Cal. 73, 43 P. 408.) "Proof of contributory negligence must be clear and decisive to warrant a nonsuit, or an absolute direction to the jury on that ground." (Thoresen v. La Crosse City R. Co., 87 Wis. 597, 41 Am. St. Rep. 64, 58 N.W. 1051.) "Appellant's next complaint is excessive damages in the particular that the verdict as to the amount of damages given is not sustained by the evidence." In the case of the death of a child it is not necessary to prove damages. (Idaho Rev. Stats., sec. 4100; Ihl v. Forty-second St. Ry. Co., 47 N.Y. 317, 7 Am. Rep. 450; Durkee v. Central P. R. R. Co., 56 Cal. 388, 38 Am. Rep. 59.) It is not indispensable that there should be proof of actual services of pecuniary value, nor that any witnesses should express opinions as to the value of such services. (Deering on Negligence, sec. 422; Chicago v. Scholten, 75 Ill. 468.) The verdict should not be disturbed on the ground of "excessive damages," unless the amount is so large as to indicate passion or prejudice. (Deering on Negligence, sec. 424.) The next contention of appellant is "insufficiency of the evidence to justify the verdict." That is the only proposition presented to the trial court for consideration under this statutory cause for a new trial, and is the only one that could be considered or reviewed by this court, as shown by the case of Fleming v. Fleming, 33 S.C. 505, 26 Am. St. Rep. 694, 12 S.E. 257. (Gulick v. Webb, 41 Neb. 706, 43 Am. St. Rep. 720, 60 N.W. 13.)

STOCKSLAGER, J. QUARLES, C. J. concur. SULLIVAN, J. dissent.



This is an appeal from an order overruling a motion for a new trial and from the judgment. The complaint alleges that defendant is a corporation existing under the laws of Idaho; that on the thirteenth day of May, 1900, defendant owned and operated a railroad and equipments, including tracks, depots turntable, etc., between the city of Weiser and town of Cambridge, all in said county of Washington, state of Idaho; that among the equipments of said railroad so owned and operated by defendant was a turntable, theretofore, to wit, prior to May 30, 1900, unlawfully, carelessly, and negligently constructed and placed by said defendant in a public and much-frequented place by men and women and children in the said town of Cambridge, and there suffered to remain by defendant, so carelessly, unlawfully, and negligently constructed and so owned and operated by it, said defendant, as to make the same a dangerous machine to all persons, but more especially children frequenting said place; that said turntable, when constructed in the manner aforesaid, was, and on said thirteenth day of May, 1900, remained and was a large, oblong frame, mostly iron, forty-nine and one-half feet in length by thirteen and one-half feet in width, rounded slightly at the ends so as to permit it to revolve past the respective ends of the main track, with an iron railroad track upon its top for locomotives to rest upon while being turned around, and revolving upon a central pivot by means of hand levers at the ends, the frame part planked on the cross-ties on the ends and sides for walking or sitting upon, and the whole resting in a pit or round hole in the ground, and the ends of the...

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