Kinzell v. Chicago, Milwaukee & St. Paul Railway Co.

BUDGE, J.

This case is now here on mandate from the supreme court of the United States, reversing the former decision of this court (Kinzell v. Chicago etc. r. Co., 31 Ida. *9 365 , 171 Pac. 1136 ), and remanding the case for further proceedings not inconsistent with the opinion of that court. ( 248 U. S. 552 , 39 Sup. Ct. 6, 63 L. ed. 8.)

An application has been made by respondent to have this court tax certain alleged costs, to wit, $75.75, paid to the clerk of this court for a certified copy of the record for use on application for writ of certiorari to the supreme court of the United States, and $299 paid for printing transcript of record for use on said application.

It is claimed that these items are taxable under subd. 3, rule 24 of the rules of the supreme court of the United States, which is as follows:

“In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. •

“The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case.”

Both items were included in the original cost bill filed in the supreme court of the United States, and were rejected.

It is urged by appellant that there is no statute of this state permitting the recovery of the particular costs and disbursements set forth in the memorandum, and that costs are not recoverable under the laws of this state in the absence of a statute (Cronan v. District Court, 15 Ida. 462 , 98 Pac. 614 ; Schmelzel v. Board of County Commrs., 16 Ida. 32 , 133 Am. St. 89, 17 Ann. Cas. 1226, 100 Pac. 106 , 21 L. R. A., N. S., 199), or rule of this court (Price et al. v. Garland, 5 N. M. 98, 20 Pac. 182 ), but I am of the opinion that respondent’s right to have the items presented taxed as costs does not depend upon the existence of any statute of this state or rule of this court. His right to recover these costs is given by the rule of the supreme court of the United States above quoted, and this court is merely an arm of that court for the purpose of taxing such costs. In other words, the right to recover the items as costs exists by virtue of the rule of the supreme court of the United States, and the duty of *10 this court to tax or fix the amount of such costs exists by virtue of the same rule.

Appellant has made application to argue the assignments of error which were not considered by this court in arriving at its former decision. This application has been resisted by the respondent upon the theory that the whole case went to the supreme court of the United States on the writ of certiorari, and that its decision reversing the decision of this court is final as to all matters involved in the case and that nothing now remains for this court to do except to affirm the judgment from which the appeal has been taken. Many authorities have been cited in support of this theory, but none of them appear to us to be in point. Counsel for respondent in their brief say:

“It will be noticed that all the cases we have cited are cases in which the writ of certiorari has been issued to a circuit court of appeals, rather than to the highest court of a state or territory. Comparison of the two acts,' however, indicates no reason why the practice in the consideration and disposition of the case should not be uniform under the two acts, .... ”

This statement clearly indicates the error into which counsel have fallen. The two acts referred to are see. 237 of the Federal Judicial Code, 36 Stat. L. 1156, as amended 38 Stat. L. 790, U. S. Comp. Stats. 1916, sec. 1214, vol. 2, p. 1580, 5 Fed. Stats. Ann., 2d ed., 723, providing for writs of error and certiorari to the highest court of a state, and see. 240 of the Judicial Code, 36 Stat. L. 1157, U. S. Comp. Stats. 1916, sec. 1217, vol. 2, p. 1750, 5 Fed. Stats. Ann., 2d ed., 854, providing for the writ of certiorari to the circuit court of appeals. While the procedure under the two acts is identical, the scope of review exercised by the supreme court of the United States under them, respectively, is very different. (Murdock v. City of Memphis, 87 U. S. (20 Wall.) 590 , 22 L. ed. 429, see, also, Rose’s U. S. Notes.) On writ of certiorari to the circuit court of appeals the supreme court of the United States has power to dispose of the merits, which, *11 however, it will only do in exceptional cases and for very important reasons, the usual practice being to correct the error, if any is found, committed by the circuit court of appeals and remand it to that court so that it may proceed to discharge its duty of hearing and deciding the ease conformably to law. (Brown v. Fletcher, 237 U. S. 583 , 35 Sup. Ct. 750, 59 L. ed. 1128, see, also, Rose’s U. S. Notes.) On the other hand, however, when a writ of certiorari is issued to the highest court of a state, the supreme court of the United States is not concerned with, nor does it have jurisdiction to dispose of, the- merits except in so far as they relate to the federal question upon which its jurisdiction depends. (St. Louis etc. R. Co. v. Taylor, 210 U. S. 281 , 28 Sup. Ct. 616, 52 L. ed. 1061; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 , 29 Sup. Ct. 220, 53 L. ed. 417, see, also, Rose’s U. S. Notes.)

In the former opinion the supreme court of the United States said:

“We have not the power to correct mere errors in the trials in state courts, although affirmed by the highest state courts. This court is not a general court of appeals, with the general right to review the decisions of state courts. We may only inquire whether there has been error committed in the decision of those federal questions which are set forth in sec. 709 of the Revised Statutes (now sec. 237 of the Judicial Code).....”

In the latter case that court said:

“The jurisdiction of this court to review the proceedings of the state courts, as we have had frequent occasion to declare, is not that of a general reviewing court in error, but is limited to the specific instances of denials of federal rights, whether those pertaining to the constitutionality of federal or state statutes, or to certain rights, immunities, and privileges of federal origin, specially set up in the state court, and denied by the rulings and judgment of that court.”

Assignments of error which involve no federal question cannot be reviewed by the supreme court of the United States under Judicial Code, sec. 237. (Central Vermont R. Co. v. *12 White, 238 U. S. 507 , Ann. Cas. 1916B, 252, 35 Sup. Ct. 865, 59 L. ed. 1433, 9 N. C. C. A. 265, see, also, Rose’s U. S. Notes.)

In our previous opinion we confined our decision expressly to the federal question involved, and held that respondent was not entitled to proceed under the federal employers’ liability act because he was not engaged in interstate commerce. We, therefore, necessarily left undecided, and' so stated, other important errors urged on the appeal. But the supreme court of the United States held that respondent was engaged in interstate commerce at the time of his alleged injury and was entitled to bring his action under said act, and has remanded the case to this court by its mandate for further proceedings not inconsistent with its opinion.

Since the supreme court of the United States has decided that respondent is proceeding properly under the federal employers’ liability act, it is our duty to consider upon the merits the errors relied upon for a reversal of the judgment. This procedure is in ^conformity with the authorities already cited, and the practice pursued in cases of this kind by other states. (Goodtitle v. Kibbe, 1 Ala. 403 ; Gibson v. Chouteau, 50 Mo. 85 ; Harding v. Harding, 148 Cal. 397 , 83 Pac. 434 ; Ettor v. City of Tacoma, 77 Wash. 267 , 137 Pac. 820 ; Simonson v. Monson, 36 S. D. 245, 153 N. W. 1020 ; St. Louis, I. M. & S. R. Co. v. McWhirter, 155 Ky. 301 , 159 S. W. 796 .)

Having reached the conclusion that the remaining assignments of error are here for decision, we shall proceed to dispose of the points raised.

Appellant contends that the trial court erred in submitting the question whether the “presence of the tail air-hose would have prevented a collision with the dozer with such force as to knock and jar plaintiff therefrom.” There was evidence tending to show not only that it was usual and customary to equip such trains with a tail air-hose, but that just prior to the accident the two work trains in use upon this particular work were so equipped, and further that the tail air-hose was designed for use in emergencies and that by its use the brakeman could stop the train when necessary, *13 without signaling the engineer. The evidence leaves no doubt that the particular train which struck the dozer at the time of respondent’s injury was not so equipped, and the testimony of respondent is to the effect that he did not know whether it was or not. Although the evidence offered by appellant was to the effect that none of the trains engaged in this work was equipped with a tail air-hose, and also that it was not practical to so equip them, it is clear from the conflicting nature of the evidence that the issue of the tail air-hose was one upon which the jury had a right to pass, and the court committed no error in refusing to take that issue from the jury.

Appellant insists that the court should have directed a verdict for the reason that “eight unimpeached railroad men proved that the speed of the train did not exceed four miles an hour when making this coupling.” The testimony of respondent and of Lee, who was also working on the dozer at the time of the accident, was to the effect that the train was moving at a speed of about ten miles an hour, that notwithstanding they were both holding on to portions of the dozer, the force of the impact was such as to break their hold loose, respondent being thrown between the cars. A witness for appellant testified on cross-examination that if such were the fact, the train was moving at a greater speed than four miles an hour. Here again the conflicting testimony made it necessary for the -jury to determine the fact.

Appellant also urges, if we understand his contention correctly, that since respondent was in a position where if he had looked he could have seen at what speed the train was coming, that he did not do so, and that, therefore, he assumed the risk of the unusual speed at which the train was traveling. We are unable to see any element of assumption of risk in this phase of the case. All of the evidence discloses, and it is conceded by both appellant and respondent, that if the train had not been proceeding at to exceed a speed of four miles per hour the appellant would not have been negligent, but that any speed in excess of four miles per *14 hour would be a negligent and careless speed at which to attempt to couple on to the d Bespondent, therefore, had the right to assume that t coupling would be made at a speed of not to exceed fou miles per hour, and to proceed with his duties on the dozer with the feeling of security which that assumption would give, and he was not required to turn from his duties for the purpose of determining whether or not the particular coupling would be negligently attempted, and by omitting to do so he assumed no risk which a speed in excess of four miles per hour would entail. Even if he had looked and had seen at what speed the train was coming, that would not bind him to an assumption of such a risk. The position which he then occupied left him no choice but that of protecting himself as best he could against a risk which he had not assumed and which was not necessarily or properly incident to the business.

A similar contention that respondent assumed the risk in the absence of a tail air-hose is equally untenable. If we assume from the verdict that the jury found that it is usual and customary to equip work trains with such an appliance and that the absence of the tail air-hose was negligence, there is no evidence that respondent had been previously notified that this particular train would not be so equipped, nor is there anything in the record from which it may be inferred that respondent, by the exercise of ordinary care, should have ascertained the fact. It is not within the bounds of probability that he could have discerned this defect a quarter of a mile distant, at which he first observed the approach of the train, and the same rule of law ’ which gave him the right to assume that the coupling would be made at the usual rate of speed also gave him the right to assume that the approaching train was equipped with the customary safeguards. Furthermore, even if upon the approach of the train he could have discerned that it was not equipped with a tail air-hose, he could not be said to have assumed that risk, for he was already placed in a dangerous position, augmented by risks as to which he was not advised and which *15 were not present when he entered into the employment and assumed his duties on the dozer. By driving down upon him with a train thus defectively equipped, the railroad company could not enlarge the scope of the risks which he had already assumed.

Appellant complains of the instructions which the trial court gave for the guidance of the jury in the event they should find the respondent to any extent guilty of contributory negligence, but the jury found specifically upon an interrogatory submitted that appellant was entitled to no diminution from the amount of damages actually sustained attributable to contributory negligence, a finding which must in the very nature of things have been based upon the further finding by the jury that the respondent was not guilty of contributory negligence. Without passing upon the sufficiency or correctness of the instructions questioned, it is clear that from this state of the record no error appears of which appellant may complain. The point is controlled by the rule aptly expressed by the supreme court of the United States, as follows:

“Error in refusing a requested instruction does not require a reversal of the judgment where the jury, by its specific findings of fact, distinctly negatived the hypothesis upon which alone the instruction was based.” (Kanawha & Michigan Ry’ Co. v. Kerse, 239 U. S. 576 , 36 Sup. Ct. 174, 60 L. ed. 448, see, also, Rose’s U. S. Notes.)

Error is predicated upon the giving of the following instruction :

“You are instructed that if you find from all of the evidence of the case that the brakeman Moodiy and the engineer and other employees on the train at the time of the happening of the accident and injury to the plaintiff in this action were employed by the defendant company as such employees upon the train at the time in question I charge you that the defendant company is hound hy the acts of each of such employees within the scope of Ms employment and authority hy the defendant and the defendant is respon *16 sible for any act or acts of negligence .of such employees and if either or any of such employees wais guilty of any negligent action or conduct as such employee in the discharge of his duty and employment at the time of the accident the defendant is responsible therefor and the employee’s negligence in respect to the discharge of his duties as such employee of the defendant company upon the said tram in question, if any, was the negligence of the defendant.”

It is urged that the italicized portion of the foregoing instruction is misleading and foreign to the issues involved, and that by its terms the jury were at liberty to unearth any act against any employee, call it negligence, and charge it to the railroad company, and to base its verdict on acts other than the two specific charges of negligence, viz., the absence of the tail air-hose and the excessive speed of the train. When this instruction is read in connection with instructions Nos. 5 and 14, wherein the jury was told that the appellant would be liable to the respondent for damages if it should find that while engaged in interstate commerce he was injured as a result of the negligence of appellant, it is not open to the criticism offered by appellant. The purpose of the instruction was to advise the jury that under the employers’ liability act the fellow-servant doctrine no longer obtains, but that the employer is liable to the employee for injuries caused by the negligence of other employees when acting within the scope of their employment. Considering the instructions as a whole, the jury was not misled by the instruction complained of. (Taylor v. Lytle, 29 Ida. 546 , 160 Pac. 942 ; State v. Ward, 31 Ida. 419 , 173 Pac. 497 ; Tyson Greek R. R. Co. v. Empire Mill Co., 31 Ida. 580 , 174 Pac. 1004 .)

Error is also predicated upon the giving of the following instruction:

“You are further instructed that it is the duty of defendant in operating its said train and ears over the track to use reasonable care to keep a lookout ahead and if said defendant and its employees in charge of the said train by keeping a lookout could have seen the said dozer upon the track and *17 the plaintiff thereon in ample time to have stopped the said train, or to have reduced the speed of the train so as to make an easy coupling, but notwithstanding such facts failed to keep such lookout, or keeping such lookout failed to reduce the speed of the train so that an easy coupling might be made and that by reason thereof struck the train with great and unusual force and violence, jarring and knocking the plaintiff off of the said dozer, then the defendant was guilty of negligence. ’ ’

Appellant contends that this instruction injected a new and false issue into the case, involving the last clear chance doctrine. The contention is unsound. It was a part of the trainmen’s duties to keep a lookout in the direction in which they were going, viz., toward the dozer and those working thereon, and to reduce the speed and to see to it that when attempting to couple on to the dozer the train did not strike it with great or unusual force or violence. Any less degree of care would be palpable negligence on the part of appellant. The instruction was properly given.

It is strenuously insisted by appellant that certain experiments and examinations which were made on and of the person of respondent during the trial in the presence of the jury were so indecent and shameful as to require a reversal of the case. While we are of thé opinion this evidence was properly admitted (Greenleaf on Evidence, 16th ed., chap. 4, sec. 13g; Wigmore on Evidence, vol. 1, sec. 445, vol. 2, sec. 1159, vol. 3, sec. 2180; 3 Jones on Evidence, sec. 403; 17 Cyc. 290, 291, 294; Dunkin v. City of Hoquiam, 56 Wash. 47 , 105 Pac. 149 ; Cook v. Danaher Lumber Co., 61 Wash. 118 , 112 Pac. 245 ), it should be observed that the only objections which were made went not to its admissibility but to the order in which the evidence was offered. The first objection, that respondent was interfering with the presentation of appellant’s ease, was sustained. The next objection, that the evidence was not proper rebuttal, was acceded to by respondent and the trial court permitted the latter to reopen his case, to which appellant objected. The propriety of per *18 mitting respondent to reopen rested in the sound discretion of the trial court, and in view of the sharp conflict in the evidence upon the questions to which the experiments were directed, we are satisfied that the trial court did not abuse its discretion in this regard. (Giffen v. City of Lewiston, 6 Ida. 231 , 55 Pac. 545 ; Hall v. Jensen, 14 Ida. 165 , 93 Pac. 962 , Union Sav. etc. Co. v. McClain, 23 Ida. 325 , 130 Pac. 84 .)

Moreover, appellant’s counsel while objecting upon the ground that respondent’s examination was not cross-examination but was interfering with the conduct of appellant’s case, stated: “I have no objection to the examination of the anus. I did not-object to it and do not object now, but I do object now to any further demonstration here to confuse the jury. ’ ’ The record discloses no change of attitute on the part of appellant, except as to the objections already referred to. There is, therefore, no merit in this contention.

Appellant assigns as prejudicial error a remark of the court made during the progress of the trial. Michael McGraw was a witness for the appellant, and in the course of his cross-examination had denied that he felt very unkindly toward respondent Kinzell. Respondent was called in rebuttal, and on his direct examination the following occurred:

“Q. Did you see that man, Mr. McGraw, there any place?

“A. No, sir, he was not there.

“Q. Did you discharge McGraw at any time?

“A. I did; yes, sir.

“Mr. Korte: I objeet to that as not rebuttal; collateral issue brought out on cross-examination. We would have a right to again try that issue by our witnesses as to whether he was there or not.

“The Court: I think it is not proper rebuttal.

“Mr. Gray: Question of interest. He denied interest in that respect, feeling toward this witness.

“The Court: He showed very strongly that he had feeling against Kinzell while upon the witness-stand.

*19 “Mr. Korte: I tbink your honor’s remark is very prejudicial, and want to except to it, with all deference to the court. ’ ’

The remark of the court was erroneous. Trial courts should be very careful to make no remark during the progress of a trial having a tendency to express the court’s opinion as to the credibility of a witness, or as to the weight of the evidence. It is not sufficient cause for reversal of a judgment that an erroneous remark of the trial court, during the progress of the trial, may possibly have affected the verdict. (Brown v. Tull (Okl.), 164 Pac. 785 ; First Nat. Bank v. Yoeman, 17 Okl. 613 , 90 Pac. 412 .) Considering the portion of the record quoted above, in connection with the entire record in the cause, it is not reasonably probable that the remark of the court affected the verdict, or deprived appellant of any substantial right. The court subsequently instructed the jury: “You are the exclusive judges of the credibility of the witnesses, and the weight to be given the testimony of each witness. ’ ’ While such an instruction generally would not cure the injury caused by a remark of the court having a tendency to give its opinion as to the credibility of a witness, or as to the weight of his testimony, we are of the opinion that in this instance prejudicial error, requiring reversal of the judgment, was not shown.

It is contended that the verdict is excessive and that the instructions of the trial court relative to the measure of damages were erroneous. As to the instructions, appellant appears to be proceeding upon the erroneous theory that respondent would only be entitled to recover his actual pecuniary loss. The rule is well settled to the contrary, where the action is brought by the injured employee himself, that the jury may take into consideration in assessing the damages the pain and suffering of the plaintiff, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effect upon his future. (Chesapeake & O. R. Co. v. Carnahan, 241 U. S. 241 , 36 Sup. Ct. 594, 60 L. ed. 979; Michigan Central R. *20 v. Vreeland, 227 U. S. 59 , Ann. Cas. 1914C, 176, 33 Sup. Ct. 192, 57 L. ed. 417, see, also, Rose’s U. S. Notes.)

The exhibition of respondent’s person at the close of the trial was of a nature to strongly excite the sympathies of the jury, and we conclude that the amount of the verdict was in part the result of passion and prejudice. The respondent at the time of his injuries was twenty-nine years of age, and had an expectancy of about thirty-five years, his. average earnings being $150 per month. While seriously disabled, the evidence shows that he still possesses some earning capacity. We conclude-that a verdict for $25,000 is as much as the evidence in the case will justify. That sum, if put out at seven per cent interest, will produce a yearly income of $l,i750. This income, in view of the evidence, is compensation to respondent for the loss of his earning capacity. There would remain the principal sum of the judgment unimpaired, which, under any reasonable view, is a sufficient sum to compensate him for his pain and suffering, mental anguish and bodily injuries sustained. (McKenzie v. North Coast Colliery Co., 55 Wash. 495 , 104 Pac. 801 , 28 L. R. A., N. S., 1244.)

We have carefully gone through the entire record and are satisfied that no error has been presented which would justify us in reversing the case.

The judgment will be affirmed to the extent of $25,000, together with respondent’s costs in the district court, with interest on both the judgment and such costs from the date of the original judgment at the rate of seven per" cent, on condition that the respondent file, within 30 days after the going down of the remittitur, a waiver of the excess of $10,000, and an acceptance of the judgment as thus modified. On failure to do so the judgment will be reversed in toto and a new trial granted. (Maloney v. Winston Bros. Co., 18 Ida. 740 , 111 Pac. 1080 , 47 L. R. A., N. S., 634; Walsh v. Winston Bros. Co., 18 Ida. 768 , 111 Pac. 1090 ; Barter v. Stewart Mining Co., 24 Ida. 540 , 135 Pac. 68 ; Kelly v. Lemhi Irr. & Orchard Co., Ltd., 30 Ida. 778 , 168 Pac. 1076 . ) No costs are awarded on appeal in this court.