Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1916-02-02
THAYER VERDICT
IS REVERSED BY
SUPREME COURT
Denver & Rio Grande Railroad
Wins on Appeal in Case in
Which Finding of $4,000
Damages Had Been Made,

} SPECIAL CORRESPONDENCE TO MORNING JOURNAL
Santa Fe, Feb. 1.-The state SUI
lpreme court today reversed and re-
manded to the district court for SAN
Ia Fe county in the case of Fred
Thayer VS.. the Denver and Rio Grande
Railroad company, appellant Thayer
had been given verdict for $4,000
for injuries sustained while at work
on a freight train in Colorado some
four years ago.
Syllabus by the Court.
1, An objection to the allowance of
an amendment should be made when
to avail himself of error in granting
the amendment the party objocting
should stand on the ruling, since he
valves the objection by pleading to
the amendment, by going TO trial
thereon. or by otherwise recognizing
the amended pleading.
, A wiful injury is a positive act,
while an injury resulting from negli-
gencc is Il negative act resulting from
the absence Of such care as it was the
duty of the defendant to use.
8. Negligence, whether slight, ordi-
nary or gross is still negligence, and is
negative in its nature implying the
omission of duty, and excludes the
idea of wilfulness. When wilfulness is
an element in the conduct of the par
~ charged. the case ceases to be one
of negligence.
4. The doctrine of last clear
chance" has no connection or relation
whatever to an intentional injury In
an action predicated upon the doctrine
of last clear chance it must appear
that plaintiff was negligent but that
such negligent was not the proximate
cause of the accident, but that the
lproXimate cause thereof was the neg
iligence of want of due care on the
part of the defendant
D. The plea of contributory negli-
gence is plea in confession and
avoidance, which admits negligence
on the part of the defendant, but
seeks to avoid liability therefor by al
lleging that the plaintiff was guilty Of
negligence which contributed to his in
jury, and the plea is bad if it denies
that defendant was negligent
6. Neither wiful nor last clear
chance can be properly pleaded in a
REPLY by way Of confcssing and avoid
ing an answer which sets up contrib
utory negligence as Il defense to a
complaint based on simple negligence,
and where tho reply sets up facts
showing a right of recovery under
either wilful injury or last clear
chance" it is departure from the
complaint and subject to be stricken
upon motiop
:. 4 party must, under our system
of pleading recover upon the cause
of Faction stated in his complaint, and
he cannot recover upon cause of ac-
tlon stated in his reply
$. \ departure in the reply consists
in leaving the case made in the com
plant or petition in respect to some
material which is inconsistent with, OF
which does not support it.
Q. one test laid down by the courts
for determining the question as to-
whether a reply constitutes depar-
tuie from the complaint is determined
by II negative answer to the inquiry
whether evidence Of the facts alleged
in the reply is admissible under the al /
legations of the complaint.
10. An instruction. not based on
the evidence, is erroneous and should
not be given, and, whore there is no
evidence in a case tending to establish
liability Of the defendant under the
doctrine of last clear chance it isl
error to submit such issue to the jury
H. The manner and method of OBJ /
Grating a locomotive engine, the spaes
within which, going at given rate OF
speed. it can be brought to a stop !
and the proper way TO check the
speed and bring to Il stop runaway !
car, are not matters Of common or
general knowledge apd cannot be Ju- ,
dicially known by the court
~. Where a cause Of action is
based upon alleged negligence Of the
master, in failing to use due care III
seeing to it that the brake upon q
box ear, which the servant IS instruct (
cd to run down the switch to a dcs- (
gnated point, and there stop by APP !
plying The brake, is in proper repair !
and the master has pleaded "assump- I
ton of risk" II IS proper for the SER
want to prove his lack Of experience /
in such work for the purpose OF dis
proving such defense as such eVi- |
dence tends to show that he did not
know and appreciate the danger.
-. The physical ability or inability |
Of person to do work or perform
any act may be proved BY the direct
testimony Of the party himself
IA. Where, in a personal injury ae-
ton, there is substantial evidence /
tending to show that the injuries are
permanent, evidence Of life expectanee
is properly submitted to the jury.
Is. 1t is generally recognized |