Ball v. Gussenhoven , 29 Mont. 321 ( 1904 )

ME, OOMiMIS'SIO'NEB OLAYBEEG

prepared- tbe opinion for tbe court.

Tbis was an action brought by plaintiff to recover damages against defendant for a personal injury. Tbe defendant was tbe proprietor of a steam laundry, and- plaintiff was employed therein. Bier band was injured, by being caught between tbe rollers of a mangle or ironing machine used in tbe laundry, at which she was put to work by defendant’s foreman. Tbe negligence upon which tbe recovery is sought is a failure on tbe part of defendant to provide plaintiff with reasonably safe machinery to work upon and to- maintain it in a reasonably safe condition. In tbe answer defendant admits that plaintiff was in bis employ, and sustained injury to one of her bands by being caught in tbe mangle; then denies any negligence on tbe part of defendant as alleged, and alleges that tbe plaintiff was guilty of contributory negligence. Tbe replication denies all tbe new matter set forth in tbe answer.

Tbe case came on for bearing before tbe court and a jury, and tbe defendant immediately objected to1 tbe introduction of any evidence on tbe part of tbe plaintiff on tbe ground “that tbe complaint fails to state facts sufficient in law to entitle tbe plaintiff' to the relief sought, and does not state facts sufficient to constitute a cause of action.” Tbis objection was overruled, and tbe defendant reserved an exception. Immediately iajfter tbe close of plaintiff’s evidence counsel for defendant moved for a nonsuit, which was overruled, and to which defendant also saved exception. Defendant then, introduced bis proof, and at tbe close of all tbe testimony moved tbe court to direct tbe jury to return a verdict for defendant, which motion was. also overruled, and defendant excepted. Tbe case was given to tbe jury, which returned a general verdict in favor of plaintiff for tbe sum of $2,000. In addition to- tbe general verdict, there were ten special findings submitted to tbe jury by defendant, all of which were found in favor of plaintiff and against the defendant.'

The defendant gave notice of intention to move for a new trial, had a bill of exceptions settled, and on the 29th day of June, 1901, filed a stipulation signed by the attorneys for the respective parties, which was in the following language: “It is hereby stipulated and agreed by and between counsel in the above-entitled action as follows: (1) Immediately after the settlement by the court of the defendant’s bill of exceptions herein the defendant may present his motion for a new trial, and all notices preliminary to the presentation of such motion for new trial, together with the time of presenting the same, are deemed to be waived, except the notice hereinafter mentioned. (2) Said motion for new trial may. be niade and argued any time between August 25, 1901, and October 1, 1901, and may be brought on for hearing on five days’ notice.”

So far as disclosed by the record on this appeal, ho motion for a new trial was ever made, and the appeal before the court is from the judgment.

The question as to whether a bill of exceptions settled for use on the hearing of motion for a new trial can be considered by this court on an appeal from a judgment when no motion for a new trial has been made in the court below, and no decision thereon is appealed from, has not been presented in this appeal, and therefore it is not considered or decided.

This court is left somewhat in doubt as to the actual position of appellant’s counsel on the questions of assumed risk and contributory negligence of the plaintiff. In the brief filed counsel makes the assertion that the case is to be tested by the question as to whether or not plaintiff assumed the risks of the employment, and states that the question of contributory negligence is not in the 'case. Upon his oral argument to- the court he announced that the above statement contained in his brief was not correct, and that he did rely on the contributory negligence of the plaintiff, and the first point he argued to the court was that the complaint in the case did not state facts sufficient, to constitute a cause of action, because it contained no allegation negativing the existence of contributory negligence.

Tbe defenses of contributory negligence and assumption of risk are entirely inconsistent witb each other, and do not rest upon tbe same principles; and tbe existence of one necessarily excludes tbe existence of tbe other. (1 Bailey, M. & S. Sec. 938 et seq.; Miner v. Connecticut River R. R. Co., 153 Mass. 398-403, 26 N. E. 994; Texas P. Ry. v. Bryant, 8 Tex. Civ. App. 134, 27 S. W. 825; Mundle v. Manufacturing Co., 86 Me. 400, 30 Atl. 16.) If tbe defense of tbe assumption of risk is maintained, tbe question of the existence of contributory negligence does not arise, because, if plaintiff assumed tbe risks of tbe employment, be cannot recover, even if be exercised tbe highest degree of care.

We recognize tbe rule that'a defendant is entitled to' plead in tbe same answer as many defenses as be may wish to. present, even though they are inconsistent witb each other, and is entitled to present and rely upon any of such defenses upon tbe trial of tbe case; subject, however, to' instructions to tbe jury as to their proper effect in each case. We do not wish to be understood as deciding whether tbe defense of tbe assumption of risk must be pleaded specially, as such question is. not involved in this case; this defense being pleaded. These questions, however, are not material to this, case, as both tbe defenses of contributory negligence and assumption of risk were pleaded, presented to- tbe jury, and found against tbe appellant.

1. Tbe first question raised by tbe appellant is that tbe complaint does not state facts sufficient to> constitute a cause of action, in that it does not allege that the plaintiff acted witb due and ordinary care in tbe operation of tbe mangle by which she was injured; in other words, that tbe complaint does not negative tbe existence of contributory negligence. This question, we think, is answered by this court in tbe case of Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852. Mr. Justice Pigott, speaking for tbe court, said: “In actions for personal injuries tbe absence of contributory negligence is not required to be pleaded or proved by tbe plaintiff, but its presence is a matter of defense. Such is tbe law in Montana. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Pac. Mutual Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. 756. Tbe contrary rule was announced in Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, but bas been overturned by tbe eases cited and those referred to. by tbé opinions therein. If, however, tbe complaint shows tbe proximate (or a proximate) cause of the injury to have been tbe act of the plaintiff, tbe complaint must also state bis freedom from negligence in the doing of tbe act; otherwise tbe pleading is bad (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21) ; and so, if the evidence in behalf of tbe plaintiff shows tbe injury to have been directly caused (either in whole or in part) by bis act, tbe burden is immediately upon him to prove that be was exercising ordinary care at tbe time. Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905. Another rule, from which there seems, to be no dissent except in North Carolina (Bolden v. Railway Co., 123 N. C. 614, 31 S. E. 851; Cogdell v. Railroad Co., 124 N. C. 302, 32 S. E. 706; Powell v. Railway Co., 125 N. C. 370, 34 S. E. 530), is that, if tbe evidence in plaintiff’s behalf establishes beyond question that bis own omission to use ordinary care contributed immediately. to, or itself caused, tbe injury, tbe court should, on motion, direct a verdict or grant a nonsuit.”

It cannot be said that, this complaint “showed tbe proximate (or a proximate) cause of tbe injury to have been tbe act of plaintiff.” The existence of contributory negligence is a matter of defense, and tbe appellant in this case must have so understood it, because be alleged in bis answer that tbe plaintiff was guilty of contributory negligence. This question was tried, and tbe jury, upon a submission by defendant of a request for a special finding thereon, found that tbe plaintiff could not have avoided tbe injury which she sustained by tbe use of ordinary care. No other objection is made to tbe sufficiency of tbe complaint, and, it having been treated as otherwise sufficient upon tbe trial, this court will so consider it upon this appeal.

2. Tbe appeal was taken from tbe judgment alone, and no-motion for a new trial was ever beard, altbougb tbe record discloses tbat notice of intention to' move for a new trial was given, ánd tbat tbe bill of exceptions (wbicb is brought up> witb tbe judgment roll) was settled for tbe plaintiff’s presentation to tbe court below on tbe motion for a new trial. Tbis is shown by. tbe stipulation found in tbe record hereinabove recited.

In assignment of error No. 11 appellant insists tbat tbe evidence is insufficient to justify the verdict in certain particulars. The respondent insists; tbat tbe appellant cannot raise tbis question on an appeal from tbe judgment, but that such question must be presented to the court below on motion for a new trial. It therefore becomes necessary to determine whether tbis question can be raised upon an appeal from a judgment when a bill of exceptions setting; forth all tbe evidence and containing specifications of tbe insufficiency of tbe evidence to support tbe verdict is a part of tbe record on appeal.

Appellant relies on tbe case of Emerson v. Eldorado Ditch Co., 18 Mont. 24/7, 44 Pac. 969, and insists that under tbe ruling in tbat case tbis court may consider tbe question of tbe insufficiency of tbe evidence- to sustain tbe verdict upon tbis appeal. An examination of tbat case discloses tbat no question •was there raised as to tbe insufficiency of tbe evidence. Tbe evidence, as stated by tbe court, was all one way. Tbe court says: “There was no conflicting evidence before tbe trial judge when be rendered judgment for tbe defendant, tbe respondent here. The testimony offered by tbe plaintiff, tbe appellant, was uncontradicted, and admissions were also' made by respondent in plaintiff’s behalf. Nor was there any contradiction of tbe testimony" offered by respondent, although-it was admitted after numerous objections. Tbe testimony before tbe court was virtually an agreed statement of facts.” So tbat in tbat case tbe evidence contained in tbe record did not support the verdict and judgment, but was contrary thereto. Tbe court in tbe same case, after reviewing several Montana cases, further says: “Tbe expressions referred to were used inadvertently, and from an inspection of tbe whole line of decisions supra we are satisfied that the principle on which they were based was simply that no' review of an issue of fact decided by a jury or trial court could be entertained unless presented in a statement on motion for a new trial on appeal from an order granting or denying a new trial; in other words, the question of the insufficiency of the evidence to justify a verdict or decision must have been directly raised by a strict compliance with the provisions of the statute regulating new trials, before it could be examined on appeal. There must have been a direct — not a collateral — attack on evidence, in so far as the insufficiency of it is concerned, before a review of it on that ground could be entertained. An exception to' a decision or verdict upon a matter of fact, as distinguished from one on a matter of law, must have been saved as a condition precedent to such review.”

This court further considered the question involved in the case of Withers v. Kemper, 25 Mont. 432, 65 Pac. 422. In this case Mr. Justice Milburn, for the court, states the law very, clearly and concisely in the following language: “To attack a judgment of the court as not supported by the findings is to raise a question of law. To attack a-decision of the court on the ground that there was a total failure of any evidence is to raise a point of law. But, in order to bring questions of the weight of evidence before this court on appeal, there must have been a hearing on motion for a new trial, and an appeal from' the order granting or refusing the same.”

The result of these decisions settles the practice in this state as follows: - Whether the verdict or decision is unsupported by any substantial evidence, being a question of of law, may be reviewed by this court on appeal from a judgment, but the question as to- whether the evidence' is sufficient to support the verdict or judgment, where there is. conflicting evidence, cannot be reviewed by this court on an appeal from the judgment.

An investigation of the record in this case discloses a clear conflict in. the evidence in several material aspects* and we cannot say that the verdict and judgment of the court below are entirely unsupported by any substantial evidence. Therefore we cannot consider the question of the sufficiency of the evidence — it being contradictory — upon this appeal.

Counsel for respondent also insist that the specifications, of the insufficiency of the evidence relied on by appellant are not made in such manner as to warrant this court in considering them.

This court, in the case of Cain v. Gold Mountain Min. Co 27 Mont. 529, 71 Pac. 1004, speaking by Mr. Justice Holloway, uses the following language: “The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is. insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to- the same effect. Section 1173 of the Code of Civil Procedure, among other things, provides: ‘When the notice of motion designates as the ground of the motion the insufficiency of the .evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * if no, g-uah specification be made the statement shall be disregarded on the hearing of the motion.’ Hn-cler a specification of the insufficiency of the evidence to supr-port the verdict this, court will not consider what the evidence does show, but only what it fails to show (First Nat’l Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Bardwell v. Anderson, 18 Mont. 528, 46 Pac. 443; Kumle v. Grand Lodge, 110 Cal. 204, 42 Pac. 634; Dawson v.6 Schloss, 93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to. disregard them on this hearing.”

Section 1152 of the Code of Civil Procedure, relative to bills of exception, provides that, “when the exception is to the ver-diet- or decision, upon tbe ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.”

Both of these statutes having the same requirements as to specifications of insufficiency of evidence, the same rules must be applied to each. In the first five specifications counsel simply states what the evidence shows, not what it does not show. He does not particularize wherein it is insufficient, but contents himself with an argument as to the sufficiency of the evidence thus recite'd.

Specification No. 6 is in the following language: “The.evidence does not justify the special findings of the jury Nos. 1, 2, 3, 4, 5, 6, 1, 8, 9 and 10, because, to justify such findings, it must have been believed by the jury that the plaintiff at the time of her injury was both blind and non compos mentis This specification is so absolutely lacking in any specification of the insufficiency of the evidence, within the rule as laid down by the above decisions, that it cannot be considered. So that it appears that, even if this court could consider the insufficiency of the evidence on this appeal, there are no- proper specifications thereof found in the record to warrant such action.

3. The next error alleged is that the court below refused to1 grant a motion for nonsuit made by the defendant at the close, of plaintiff’s testimony.

This court, by Mr. Justice Holloway, has lately announced the rule as to motions for nonsuit in the following language: “The evidence offered on her [plaintiff’s] behalf tended to prove this contention, and under the rule well established that on motion for nonsuit every fact will be deemed proved which the evidence tends to prove (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mt. Mining Co., 27 Mont. 529, 71 Pac. 1004), the evidence should have gone toi the jury, and the motion for nonsuit was properly denied.” (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42.) So, in this ease, plaintiff having alleged negligence on the part of tbe defendant in not providing reasonably safe machinery upon wbicb tbe plaintiff was directed to wort by tbe defendant’s agents, and in not keeping it in snob condition, and tbat tbe injury complained of resulted from tbe use thereof, and tbe evidence introduced on her behalf clearly tending to maintain her position, tbe motion for a nonsuit was properly overruled.

4. Tbe next point insisted upon by appellant is tbat tbe court should have directed tbe jury to' render a verdict in favor of tbe defendant. Section 1104, Code of Civil Procedure, provides : “Where, upon tbe trial of an issue by a jury, tbe case presents only questions of law, tbe judge may direct tbe jury to render a verdict in favor of tbe party entitled thereto.” If substantial evidence bad been introduced prior to tbe motion, wbicb in any way or manner tended to support plaintiff’s- contention, then the weight of tbe evidence became a question for tbe jury, and tbe court properly refused a motion to direct a verdict for tbe defendant. (Cain v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448.)

5. Counsel allege error in tbe admission and rejection of evidence. We have carefully examined these alleged errors, and cannot say tbat appellant was in any way injured by tbe rulings of tbe court thereon.

6. Instructions of tbe court. Appellant alleges error in tbe court’s refusal to give instructions Nos. 5 and 6 requested by him, and in giving instructions Nos. 2, 8 and 10. We are of tbe opinion tbat tbe court below did not err in refusing to give defendant’s instructions Nos. 5 and 6 as requested. Tbe charge of tbe court as given is very full, and sufficiently instructs tbe jury upon tbe propositions covered by these requests. Neither do we conclude that- tbe court erred in giving instructions Nos. 2, 8 and 10. Perhaps these instructions are somewhat inaccurate in language, but they must be considered in connection with tbe other parts of the charge as. given. We are of tbe opinion tbat appellant cannot complain of tbe giving of these instructions, as the charge as a whole states tbe law as applicable to tbe case at bar as tbe case was presented to tbe court below.

Tbe tenth specification of error relates to tbe following portion of instruction No. 16: “And you may find for tbe plaintiff in any reasonable amount not to exceed $5,000, and may include any reasonable sum you may find plaintiff expended for medical attention.” Tbe entire instruction as given was as follows: “Tbe jury are further instructed that if, under tbe evidence and instructions of tbe court, they find for tbe plaintiff, then in estimating- tbe plaintiff’s damage they have tbe right to take into consideration tbe personal injury inflicted upon tbe plaintiff, tbe pain and suffering undergone by her in consequence of her injury, if any is proven, and you may also consider tbe extent of tbe injury as to being permanent or not, and you may find for tbe plaintiff in any reasonable amount not to exceed five thousand dollars ($5,000), and may include any, reasonable sum you may find plaintiff expended for medical attention if tbe proof shows that she expended any.” It will be noticed that counsel for appellant does not quote tbe conclusion of the instruction in tbe following words: “If tbe proof shows that she has expended any.” By this instruction, therefore, tbe jury were told that plaintiff might recover any reasonable sum she bad expended for medical attention, if the proof showed that she bad expended any. Tbe proof is, uncon-tradicted that she bad spent $7 5 for this purpose. We do not think tbe instruction under tbe evidence was harmful.

Again, if appellant bad desired to ascertain tbe amount of money allowed plaintiff for tbe injury and for tbe moneys expended, be could have requested a separate verdict stating tbe amqunt given for each purpose. This was not attempted, and tbe verdict is general, and, inasmuch as tbe plaintiff claimed $5,000' for tbe injury alone, and tbe verdict is only for $2,000, we cannot see that appellant could have been injured.

A careful examination of all tbe evidence disclosed by this record leads one to tbe conclusion that plaintiff made out a very unsatisfactory case, but there was sufficient substantial evidence in plaintiff’s favor, wbicli was fairly submitted to a jury, and this court upon an appeal from the judgment cannot interfere with the verdict rendered.

We advise that the judgment appealed from be affirmed.

Per Curiam.

For the reasons stated in the foregoing opinion, the judgment appealed from is affirmed.