Chamberlain v. Milwaukee & Mississippi Railroad

By the Court, Cole J. This is an appeal from an order of the circuit court of Milwaukee county, granting a new trial after a verdict had been rendered upon the evidence, and under the instructions of the court for the appellant. It is very well known that under the old practice, applications for a new trial were mainly addressed to the sound discretion of the court in which they were made, and hence this court has frequently decided that it would not reverse a judgment for an alleged error in denying a new trial unless in a case where it appeared there had been a gross abuse of discretion on the part of the court below. But as a writ of error did not lie to an order of the inferior court granting a new trial, there was no way in which the ruling of such court in that behalf could be reviewed, although it is manifest that very great injustice might sometimes be done to a successful party by the court ordering a new trial. The code in subdivision 3 of § 2 3 9, has introduced a new practice in this respect, [430] by permitting an appeal from an order granting a new trial. Bat whet should be the practice of this court; how far we can go in considering and deciding these appeals, remains in a great measure unsettled, and can only be determined upon further discussion and reflection as cases shall come before us. It is very easy to see that cases will probably arise, which will involve some very interesting and novel questions; as for instance, how far under the practice of the code the appellate court might be authorized in interfering with an order of the court below which should grant a new trial on the ground that the verdict of the jury was not supported by the evidence where perhaps from the testimony we might conclude that the verdict was right. In limiting the extent to which this court would be warranted in going in these cases, it was insisted by the counsel for the respondents, that although the code had permitted an appeal from an order of the circuit court granting a new trial, yet that really the practice in this respect was not essentially changed, and that this court ought not to review such an order except in a case where it appeared there had been a gross abuse of discretion on the part of that court. But the wisdom of the provision of the code which allows an appeal from an order refusing or granting a new trial, is not very striking, if this construction is given to it, and it is held that we could not interfere with the order of the circuit court except in a case where we were satisfied there was a manifest abuse in the exercise of its discretion in the premises. But a discussion of these and like propositions, though interesting, is not necessarily involved in the disposition of the present case. " For we have come to the conclusion that the following instruction, which was asked for by the counsel for the appellants, and given by the court in its charge to the jury under exception was erroneous and calculated to mislead the jury; and therefore the motion for a new trial was properly granted. The instruction to which we allude is the following: “ That [431] under the agreement, if shown, between Holton & Co., and the railroad company, by which the plaintiff was to be carried' as an express messenger on the freight train, the fact that the plaintiff was on such train, and was injured by being thrown off and rim over, would of themselves constitute a prima facie. case on which the plaintiff would have the right to recover.” We deem this instruction incorrect, because it assumes that the case was made out, if it appeared that the appellant was thrown off the cars and run over while on the train as express messenger, without his showing that the injury was not attributable to his own misconduct. The accident might have happened by his own want of ordinary care and prudence while upon the top of the cars at the brake, and under such circumstances as would exonerate the company from all blame in the premises. The proof showed that he was in a hazardous position at the request of the deputy superintendent, Merrill, and if while in this position exercising ordinary care and diligence he was injured by the carelessness and negligence of the servants of the company, he is entitled to damages. But he should show that his own negligence did not in any way contribute to produce the injury. Parker vs. Adams, 13 Met., 415; Adams vs. Inhabitants of Bridgewater, 7 id., 188; Lane vs. Crombie, 12 id., 177; Hatfield vs. Rosser et al, 21 Wend., 615; Spencer vs. Utica and Schenectady R. R. Co., 5 Barb. S. C. R., 337; Butterfield vs. Forrester, 11 East., 61. It was further contended by the counsel for the respondent, that the evidence clearly showed that the accident happened while the appellant was acting as a servant of the company and therefore he could not maintain an action against his principal for any injury which he might have sustained through the carelessness or negligence of another servant in the employ of the same principal. The circuit court so charged the jury and instructed them to find for the respondents if they were satisfied that the appellant, at the time of [432] the injury, was in the employ of the company as brakeman, and received the injury while thus employed, even through the carelessness and negligence of other servants of the company. With the exception of the instruction already alluded to we are of the opinion that the respondents have no reason to complain of the charge of the court. But as the first instruction was erroneous and might have misled the jury, the verdict was properly set aside and a new trial ordered. The order of the circuit court granting a new trial must therefore be affirmed.