Kanable v. Great Northern Railway Co.

Bobinson, J. This is an appeal from an order denying a motion for a new trial. This is a personal injury suit to recover $10,000 under the Federal Employers’ Liability Act, which is the same as the State Employers’ Liability Act. Under either act the action must be commenced within two years. The complaint avers that in June, 1917, at Fargo, North Dakota, the plaintiff and other employees of the defendant undertook to load a heavy gravestone onto a car of defendant; that the stone was to be shipped from Fargo to some point in Montana, and in loading the stone the defendant, by its servants, so negligently used a freight truck that the plaintiff was thrown with great force against the side of the freight car, breaking the drum of his right ear and crushing the joint of his large toe on the right foot, to his damage, $10,000. On petition of the defendant the case was transferred to the Federal court, and on motion of the plaintiff it was remanded to the state court. In February, 1920, more than two and one half years after the injury, the case was tried and [622] the jury found a general verdict for defendant, and found specially that the shipment of the stone was from Fargo to Walhalla, North Dakota. In March, 1920, the plaintiff made a motion for a new trial and for leave to strike from his complaint the averments relating to interstate commerce and the Federal Employers’ Liability Act. The motion was denied. It was made on the complaint, the answer, the special findings and verdict, the charge of the court, and the minutes of the court. The motion for a new trial was not made for either of the several causes specified by statute. § 7660. It did not specify any ground or cause whatever. Nor was it accompanied by a statement of the errors of which plaintiff complained. The statute provides: “A party desiring to make a motion for new trial . . . shall serve with the notice of motion a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of that character that the verdict should be set aside as a matter of discretion, he shall so specify.” Comp. Laws 1913, § 7656. The rule is that “grounds not stated in the motion or written statement will not be considered at the hearing by the trial court. And similarly it is held that on appeal the reviewing court will not consider any grounds other than those specified in the motion. A party making a motion for new trial is bound by the reasons assigned therein and can urge no other on appeal.” 20 Cyc. 944. However, the most fatal defect is that the plaintiff has not caused a statement of the case to be settled. The record is here without anything purporting to be a statement of the case. As there is no evidence before the court, it is in no position to review the evidence and declare that in denying the motion there was any abuse of discretion. The presumptions are all in favor of the judgment and the order. On a proper notice a motion for a new trial may be made for either of the several causes specified by statute, and it may be made on a statement of the case or on the minutes of the court. The minutes contain the evidence, the objections and exceptions, and all the procedure from the commencement to the end of the trial. The district judge may take official notice of his minutes, and-may refresh his memory by hearing the stenographer read the same to him; but on appeal the minutes can [623] not be considered unless they are copied, certified, and made a part of the record. As provided by statute. “In ease a motion for a new trial is made on the minutes of the court, either party desiring a review of the decision of the court on such motion may proceed to have settled a statement of the case.” Comp. Laws 1913, § 7661. It now seems quite certain that the action should have been brought in the state court under the Fellow Servant and Contributory Negligence Acts of 1907 and the Act of 1915, chap. 207. In actions to recover for personal injuries under those acts, the fact that the employee has been guilty of contributory negligence is not a bar to recovery, but the damages are diminished in proportion to the negligence attributable to the employee. Under the first statute the action must be commenced within one year, and under the second statute, two years. The short-time limit for commencing actions against common carriers by railways for personal injuries is based on good reasons. The persons who witness such injuries and accidents are commonly transients, who go and come, and forget all about matters which do not concern them. Hence, it is in furtherance of justice that such actions should be commenced and brought to trial while the facts are fresh in the memory 'of disinterested witnesses. But the purpose of plaintiff’s motion is, in effect, that now, after the lapse of three years, he be permitted to commence and maintain such an action. Were the motion granted, the amendments allowed, and a trial had on new pleadings, — the plaintiff first paying the costs of this action, — it would be virtually the same as the commencement of a new action without any showing that it would be in furtherance of justice. Christianson, Ch. J., and Birdzell, J., concur. Bronson, J. I concur in the result.