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

WHITING, J. Action to recover damages for personal injuries; verdict and judgment for plaintiff; and appeal from judgment and order denying a new trial. [1] Respondent pleaded that, while working in the employ and under the direction of an employee of appellant and at appellant’s 'business, he caught his foot in a frog on appellant’s tracks, which frog had been carelessly and negligently allowed to remain unblocked; that while he was so caught in such frog, and while he was in full view of appellant’s agents and servants in'-charge of a.train, such agents and servants negligently drove said train over and upon him; that, while he was so caught in such frog, the agents and servants of appellant • negligently failed' to use ordinary care in keeping a reasonable lookout upon said track, and, because of such' negligence, failed to see respondent and negligently drove said' train over and upon him; and that respondent suffered an injury and- damages. Evidently the trial court was of the opinion that the evidence--on the question of respondent’s being' an employee óf ' appellant was wholly in [425] sufficient to go to the jury. It submitted the case upon the theory —not that appellant was liable if it negligently left the frog unblocked — ibut that it was liable if appellant’s agents and servants failed to keep such a lookout as the circumstances of time and place required, and through such failure, or through failure .to use reasonable care and prudence after respondent’s presence was discovered, run the train upon and over plaintiff. Under the court’s instructions, respondent’s right to recover was clearly predicated upon the jury’s finding that the accident occurred exactly as claimed by respondent and that respondent used the efforts, which he claimed to 'have used, to extricate himself and to attract the attention of the train crew. [2] Appellant assigns error in the overruling of its objection to the receipt of any evidence, and contends that the complaint failed to state facts sufficient to constitute a cause of action. The -complaint was clearly good as against the objection of its insufficiency not raised by demurrer. Strong v. Schaffer, 39 S. D. 250, 163 N. W. 1035; Anderson L. Co. v. Spear, 25 S. D. 624, 127 N. W. 643. [3] Several assignments of error are directed to rulings on evidence -bearing on the question of respondent’s alleged employment and appellant’s alleged negligence in not blocking the frog. If any error was -committed in receipt of such evidence, it was cured by the court’s submitting the case on a theory under which both the question of employment an-d of condition of frog became immaterial. [4] Appellant assigns error in the court's refusal to direct a verdict. There was ample evidence to support a verdict for respondent, and the motion in no manner questioned the right of the court to -submit the case because the evidence, did not conform to the pleadings. It was merely a question, not of whether the facts proven sustained the complaint, but whether there was evidence of facts which were sufficient to establish a -cause of action. [5] Appellant asked for an instruction which was probably a correct statement of the law applicable to the theory upon which the -complaint was framed. This was refused. It is clear that this was refused, not because it was not a correct statement of the-law 'applicable to the' facts ‘ pleaded, but because the court was of the opinion that theré was insufficient--evidence to'warrant sub [426] .putting sitch ‘facts to the jury. In other words, it was equivalent to a direction-in favor of appellant upon any issues-as to such .facts; of this appellant cannot be 'heard' to complain. ■ Appellant made no complaint whatever because the court .submitted the case to the jury upon a theory not covered by the pleadings, but does assign as error the ■ correctness of instructions given at respondent’s request and instructions given of the court*á ■own motion. [6] One assignment of error, and therefore we presume one specification of error, was: “The court erred in giving instructions requested by plaintiff.” It will be noted.that this assignment in no manner points out the instructions complained of; neither does it point out wherein they were erroneous. Such an assignment of error presents nothing to this court. Reeves v. Nat. Fire Ins. Co., 170 N. W. 575. [7] Appellant, in one assignment of error, says: ’ “The court erred in instructing the jury as to the duty of the trainmen to keep a reasonable lookout to discover persons on the track, and in instructing the jury that if the servants of the ■defendant failed to keep a lookout, or failed to prevent the accident after discovering the perilous position of the plaintiff, the ■plaintiff were entitled to recover.” The evidence was such as to fairly present the question of whether appellant’s trainmen had reason to expect the presence of persons on the track at the point where this accident occurred. This evidence justified the above instruction. Eppstein v. Missouri Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967. [8] In another, assignment of error appellant says: “The court erred in defining the care' required toward the ■ plaintiff, he not being an employee of the defendant, in effect instructing the jury that it was the duty of the railway company to use reasonable and ordinary care to provide a safe-place in which to work; this being the full duty of the defendant toward ■an employee.” [9] There was absolutely no exception to instructions taken which, by any stretch of imagination, could be held' to point out ■any part of the instructions to which the above assignment would [427] apply;' furthermore there was no instruction to which such assignment could fairly ibe held to apply. The evidence is ample to support the verdict when such evidence is considered in the light of the instructions. Appellant apparently concedes this to be true, unless the claims of respondent as to the manner in which his foot was caught and held are absolutely inconsistent with, and irreconcilable with, the established physical facts. Appellant’s whole argument on this point is premised upon the assumption that respondent’s evidence shows that his toes were underneath the balls of the two rails of the frog. Starting from such premise he argues that it would have been a. physical impossibility for respondent to have received the injury he did and yet receive no further injury. There is absolutely no • evidence that respondent’s toes were under the balls of such-rails. There is evidence showing that the heel of the shoe was-caught, but nothing to show but that the toe of the shoe was-above the rails. The judgment and order appealed from are affirmed.