Harnett v. Central Pacific Railroad

Paterson, J. Appeal from an order granting a new trial.

The question of fact in the case is, whether the plaintiff, a minor, was forcibly ejected from a switch-engine, [32]and through the negligence of defendant’s employees run over and injured, or whether he fell, or of his own volition jumped, from the engine.

The evidence is very conflicting. Following the rule so often referred to and applied, therefore, the order of the court should not be disturbed. It is claimed, however, that the specifications of particulars as to the insufficiency of the evidence to justify the verdict fail to show wherein the evidence is insufficient.

The specifications are in the following language: “ The evidence was insufficient to show that the plaintiff was by any servant or employee of the defendant negligently or carelessly pushed, shoved, forced, or driven from said engine. On the contrary, the evidence established that the plaintiff, with his companions, contrary to the orders of the persons in charge of the switch-engine No. 44, got upon the foot-board in front of said engine, which was a place of great peril to him, and attempted to steal a ride thereon. The evidence showed that as soon as they were discovered the engineer in charge of said engine slowed down the same, intending to come to a full stop, and then remove the plaintiff and his companions from the position of danger which they occupied. The evidence showed that the plaintiff and his companions jumped from said engine before it had stopped, and thereby received the injuries complained of. The evidence showed that the injuries received by the plaintiff were caused proximately by his own negligence and willful disregard of the orders and directions of the servants and employees of the defendant, and not in consequence of any act or omission of the defendant, or its servants or employees. The whole case showed no negligence, either in fact or in law, of the defendant.”

It would be difficult to state in more specific terms the particular points of insufficiency on which the moving party proposed to rely in its proceeding for a new trial. It gave the plaintiff notice, in plain and direct language, [33]of the matters that would be urged on the hearing of the motion,—which is the object of the statute requiring such specifications, —and could not have misled him in preparing his amendments to the proposed statement. As stated by the judge in his decision granting a new trial, “ The whole case was tried upon one theory that the injury was caused by the act of the fireman in pulling the hat and hair of plaintiff, and actually pushing him from the engine,”—how plaintiff came to jump or fall was the main question.