Schafer v. Gilmer

By the Court, Hawley, O. J.: This is an action brought by the plaintiff to recover the sum of ten thousand dollars damages, for injuries alleged to have been received by him while a passenger on the defendants’ stage-coach in traveling from Cherry Creek to Robinson, in White Pine County. Plaintiff recovered a judgment for five thousand dollars, from which, and from an order of the court overruling a motion for a new trial, the defendants appeal. Appellants, upon the trial of the cause, relied upon three separate and distinct defenses: 1. That the stage did not upset; 2. That if it did upset, plaintiff was not injured; 3. That if it did upset, and if plaintiff was injured, he was guilty of contributory negligence, and was (if driving) at the time of the accident a servant of the defendants. [337] 1. Most of the objections by appellants are based upon the ground that the court in giving instructions to the jury ignored “ all question of contributory negligence.” It is a well settled principle of law that the instructions given must be considered rvith reference to the pleadings and the evidence. In this case the question of contributory negligence is not raised in the pleadings, and no testimony was offered that would authorize its consideration by the jury. In fact, there is no evidence to sustain the third defense relied upon by appellants’ counsel. The plaintiff Schafer was the only passenger on the stagecoach at the time of the alleged accident, and he and the driver were the only persons present when it occurred. Wadleigh, the driver of the coach, was intoxicated. Schafer testified that about five miles out from Cherry Creek the driver went to sleep; that he then took the lines and drove the team until the driver woke up; that Wadleigh, after waking up, took the lines out of his hands and commenced whipping the horses; that the horses commenced running; that one of the lines, to quote the language of the witness, “ dropped on the ground, caught on the wheel, jerked the horses out from the road on the off side; I hollered ‘whoa’ to stop the horses, and they checked up a good deal. Wadleigh was pulling on one line and I told him not to pull too hard or he would upset sure. * * The ground was slanting to the nigh side, and the stage ran into a little gully, and Wadleigh pulling on the nigh line caused the stage to cramp when it struck the gully, and it upset. I was sitting on the nigh side. I fell on the left side, on a rock. Wadleigh fell on top of my breast.” The only pretense that plaintiff was guilty of contributory negligence is based upon the imaginary idea that he might have been driving the team at the time of the accident. It is true that the witness Wadleigh told some parties that he had no recollection of the stage upsetting, “but if it did upset Schafer was driving, ” and he testified upon the trial that Schafer told him after he woke up that they had had a tip over but that nobody was hurt. If he had stopped [338] here there might have been some slight foundation upon which to submit the question to the jury whether or not respondent was driving at the time of the accident. But he further testified that he did not think it possible that the stage could have been upset without his knowing it. He admitted that he was driving at the place where Schafer testified the accident occurred, but denied that the stage upset at that or any other place. This denial was made without any qualification whatever. At the close of his testimony the court asked him this question: “Mr. Wadleigh, do I understand you to say the stage did not tip over on that day between Cherry Creek and Bobinson ?” Answer — “I swear positively that it did not.” In the face of this testimony it cannot be reasonably claimed that there was any evidence tending to show that plaintiff was guilty of contributory negligence. 2. The eighth instruction given by the court, if erroneous at all (under the facts and circumstances of this case), is only so because it authorized the jury to consider a false quantity by taking into consideration the question whether plaintiff was driving at the time of the accident. From the conclusions already reached it is evident that the appellants could not have been prejudiced by the giving of this instruction. The law compels stage proprietors to furnish prudent and skillful drivers, and holds them liable for any injury that a passenger may receive on account of any negligence in this particular. (McKinney v. Neil, 1 McLean, 540; Stockton v. Frey, 4 Gill, 406; Farish & Co. v. Reigle, 11 Grat. 697; Sales v. Western Stage Co., 4 Iowa, 547; Stokes v. Salstontall, 13 Pet. 181; Sawyer v. Dulaney, 30 Tex. 479; Redfield on Carriers, sec. 340; Angell on Carriers, sec. 569.) 3. The court did not err in modifying the' sixth instruction asked by defendants’ counsel. If it be true that no mere probability, that the plaintiff was injured by the upsetting óf the stage, would justify the jury in finding a verdict in his favor; yet if the jury was satisfied from the evidence that plaintiff did receive the injuries complained of by the upsetting of defendants’ coach, [339] through, the negligence of the driver, then it was the duty of the jury to take into consideration the injuries thus received, in making up their verdict. In other words it was the duty of the jury to determine the nature and extent of the injuries that plaintiff received by the upsetting of the coach, and they were authorized by this instruction, as modified, to consider “such injuries” in making up their verdict. 4. It is claimed that the court erred in giving an oral charge to the jury in the following words: “This is an action wherein plaintiff sues defendants for ten thousand dollars for injuries alleged to have been occasioned by the upsetting of a stage-coach of defendants. The plaintiff complains that his injuries resulted from the upsetting of defendants’ stage. Defendants claim that this stage never was upset. Also, that the alleged injuries came from natural causes. “ In this case there is plain perjury on one side or the other. Either the plaintiff, Henry Schafer, committed perjury or the witness Wadleigh, and one or the other of them ought to be in the penitentiary instead of being in this court-room.” This charge was given to the jury before any of the written instructions were read. The objections urged by appellants’ counsel are to that portion charging perjury. It will be observed that there is no intimation from the court as to which party it deemed guilty of the offense. It was left to the jury to determine the truth or falsity of the respective statements sworn to by the witnesses, Schafer and Wadleigh. These witnesses had solemnly testified diametrically opposite. In reply to the question asked by the court, “ Did the stage tip over that day, between Bobinson and Cherry Creek?” Wadleigh answered: “I swear positively that it did not;” Schafer answered: “Yes, sir; I am positive it did.” The court, in charging the jurors that there was false swearing “on one side or the other,” only told them what they already knew, or ought to have known. Such remarks do not entitle a party to a new trial. (State v. Glovery, 10 [340] Nev. 24.) Perhaps it would have been better for the court to have withheld its opinion that either Schafer or Wadleigh ought to be in the penitentiary. But it is apparent that the remarks of the court were only intended, and could only have been understood by the jury, as placing the seal of its condemnation upon the crime of false swearing, and to impress upon the minds of the jurors that it was their duty to determine which one of the witnesses had sworn falsely. . 5. The jury, in awarding damages to the extent of five thousand dollars, must necessarily have found as a fact that the injuries from which plaintiff was suffering were produced by the accident, and did not come from natural causes. Upon this point there is a substantial conflict in the evidence. We are of the opinion that there is sufficient testimony to sustain the verdict of the jury. Dr. Bookman, the physician called to attend plaintiff shortly after the accident occurred, after giving a detailed statement of plaintiff’s injuries, concludes his testimony as follows: “From the examination of the plaintiff I consider that he has a very poor chance for recovery. I do not think he can ever perform manual labor. From an examination of plaintiff’s lungs at the present time, it is impossible for any physician to diagnose the disease so as to tell exactly the origin of it; that is, whether the present injured state of the lungs arose from traumatic or idiopathic causes; but, from my knowledge of his case from the start, and from the examination made at the commencement of his sickness, the development of the disease then,.and from the examinations recently made and the present development of the disease, in my opinion there is no doubt but the injuries to plaintiff’s lungs arose from traumatic causes; that is, from sqme injury received, and that it is not thesis or natural consumption.” If the jury believed these conclusions to be correct, and that plaintiff received the injuries by the negligent upsetting of defendants’ coach, the amount of the verdict is not excessive. The judgment of the district court is affirmed.