McIntyre v. Northern Pacific Railway Co.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. In this action the plaintiff seeks to recover damages for the loss she sustained by reason of the death of her son, Freddie Lautwe, which is alleged to have been caused by negligence in the operation of a switch-engine of the railway company by its employees in its yard at Butte. Defendants Lawrence and Williams, respectively the engineer and fireman in charge of the engine, were not served with summons, and therefore were not parties to the trial. At the conclusion of the 'evidence the court, on motion of the railway company and defendant Finnegan, directed a verdict in their favor. Plaintiff has appealed from the judgment entered thereon, and from an order denying her a new trial. Counsel contend that the court erred in withdrawing the ease from the jury. McIntyre v. Northern Pacific Ry. Co., 56 Mont. 43, 180 Pac. 971, was an action by the plaintiff herein as administratrix of her son, to recover damages for.the benefit of his estate. The complaint in that case was drawn, and the trial was had upon the theory that recovery could be had, if at all, under the rule of the last clear chance. The complaint in this case is identical with that in the other, and the trial was had upon the same theory. The plaintiff undertook to establish her right to recover in this ease, by evidence which was the same in all substantial particulars as that introduced by her in the other case, with this exception: At the trial in the other ease she testified that she was present in the yard at the time of the accident and witnessed it. She pointed out — 263 — the place where she was standing. She also pointed out where her son was standing on the track when the engineer started to move the engine toward him, giving the distance before it reached him and ran him down. At the trial of this case she changed her testimony as given on the other trial, by putting herself at a point where she was much nearer the engine when it began to move, and fixing the point at which her son stood much farther from the engine, thus bringing herself relatively nearer to the engineer, in order to increase by her testimony the probability that the engineer saw her son in ample time to stop the engine before it reached him. She explained this change in her testimony by saying that at the other trial she had not measured these distances, but had only estimated them, whereas after the trial she had procured the services of a competent engineer and had them accurately measured. Reference to the epitome and analysis of the evidence made in the opinion in the other ease will make it clear that the change in her testimony did not add materially to the evidentiary value of her narrative as then made. The discussion in that opinion fully covers and disposes of every phase of the evidence in this, under the rules of law applicable, and we are satisfied with the result reached. It is conclusive of this case. It may be added that the defendants introduced several witnesses whose testimony was not introduced at the trial of the other case. Their testimony strongly impeached that of the plaintiff, in that it tended to show that she was not at the point where she said she was standing at the time of the accident, and that she was either mistaken in important particulars of her narrative, or that her statement that she was present in the yard and witnessed the accident was a fabrication. Conceding for the moment that her statement furnished the basis for an inference that the engineer actually saw the boy, in view of the change in her testimony, the positive statement of the engineer that he did not see the boy and the undisputed evidence, positive and circumstantial, of — 264 — other witnesses introduced by the defendants, impeaching her testimony throughout, as pointed out in the opinion in the other case, the evidence as a whole was insufficient to justify a recovery. If the pleadings had been formulated on the theory that because of the situation of .the yard and customary [1] use of it by those who lived in the vicinity and other members of the public by acquiescence of the railway company, its duty to take knowledge of their probable presence and to keep a lookout for them during the movement of its train would have been made apparent, and a different ease would have been presented. The evidence might then have made a ease calling for the judgment of the jury. The rules by which cases of that character are determined have no application here. In that class of cases it is the duty of the company to keep a lookout in order to avoid injury to persons who may bo in the way of its trains. (Dahmer v. Northern Pac. Ry. Co., 48 Mont. 152, 136 Pac. 1059, 142 Pac. 209; Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 Pac. 323.) In cases of the class of the instant ease the company is under no duty other than to avoid injury to persons who may be in the way of its trains after their presence and peril have actually been discovered. (Dahmer v. Northern Pac. Ry. Co., supra, and cases cited.) Construing the evidence from the aspect of it most favorable to the plaintiff, it presents nothing more than a scintilla [2] tending to show that the engineer actually observed the boy on the track. In Escallier v. Great Northern Ry. Co., 46 Mont. 238, Ann. Cas. 1914B, 468, 127 Pac. 458, it was pointed out that it requires more than this to call for the judgment of a jury. The principle of that ease applies here. Honorable Theodore Lentz, of the fourth judicial district, presided at the trial, having been requested to do so. by [3-8] Honorable John B. McClernan, the resident judge, in whose department the case was pending. After the verdict was rendered, but before judgment had been entered, Judge — 265 — Lentz returned to his own district. A few days later a formal judgment was presented to him by counsel for defendants at Missoula for his signature. After he had signed it, it was transmitted to the clerk of the district court in Silver Bow county, and by him duly entered. Counsel for plaintiff contend that, since Judge Lentz did not formally render judgment in open court in Silver Bow county, the judgment is void. It is true that a judge cannot at chambers, after leaving the district in which he has presided at a trial, render judgment therein or make any order other than he is authorized by statute or by agreement of the parties. (State ex rel. Mannix v. District Court, 51 Mont. 310, 152 Pac. 753.) Indeed, he is without jurisdiction while he is in his own district to do anything at chambers, in relation to eases pending there, other than what the statute authorizes. (State ex rel. Mannix v. District Court, supra; 23 Cyc. 550.) The rendition of a judgment is a judicial act which, to be valid, must be rendered in open court. Section 6800 of the Revised Codes declares: “When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. ’ ’ Under this provision, the return and recording of a general verdict makes it the ministerial duty of the clerk to enter judgment. In other words, the recording of the verdict under the direction of the court is the rendition of judgment. Thereafter the court has no other function to perform with reference to it, unless it has ordered the case to be reserved for argument or further consideration, or granted a stay of proceedings. The custom of drawing a formal judgment and having the judge sign it is usually observed; but this is not required by the statute. The signature of the judge is not essential to its validity. (State ex rel. Dolenty v. District Court, 42 Mont. 170, 111 Pac. 731; State ex rel. Anderson v. — 266 — District Court, 56 Mont. 244, 184 Pac. 218; Spelling on New Trial & Appellate Practice, sec. 485.) It is otherwise when the court directs the jury to return [9] a special verdict or special findings. When the special verdict or findings are returned, it is the duty of the ^court to render the proper judgment. (McDonald v. Klenze, 52 Mont. 142, 157 Pac. 175.) “There is this difference between a general and a special verdict: The former includes, or rather unmistabenly implies, the conclusion of law constituting a judgment, while the latter answers the purpose of findings by the court, but lacks the conclusion of law which accompanies findings made by the court. Therefore, in cases of special verdicts, the clerk has no guide for entering the judgment until the court has declared the conclusion of law; that is, directed what judgment shall be entered.” (Spelling on New ‘Trial & Appellate Practice, see. 485.) When this is the situation, the rendition of judgment, being a judicial act which remains to be done, must be performed by the judge in open court. The announcement of his decision by the judge in open court and the entry of it in the minutes constitute the 'rendition of the judgment. The equity cases, if the decision is general or the findings are not accompanied by conclusions of law embodying specific directions as to the adjustment of the rights of the parties, the clerk has no authority to enter the judgment. In assuming to do so, he assumes to perform judicial, functions, whereas his duty in this respect is ministerial. He may not act at all until the terms of the judgment have been finally fixed by the court. (State ex rel. Reser v. District Court, 53 Mont. 235, 163 Pac. 1149.) When this has been done, however,, the clerk’s duty is clear. When entered in conformity with the direction of the court, the judgment is the judgment of the court, though not written out and signed by the judge. The signing of the judgment in this case by Judge Lentz at Missoula was therefore not necessary to authorize the clerk — 267 — to enter tbe judgment. The contention of counsel is without merit. The judgment and order are affirmed. Affirmed. Associate Justices Holloway, Hurly and Matthews concur.