argument of the learned counsel and pass ance of his duties to his employer, and that upon all the points discussed, but the pro- the time lost in making necessary repairs cedure adopted at the trial confines our in- to his velocipede car at Sparks prevented quiry to the real question presented for our him from reaching the point where he was consideration: Are the special findings of injured before dark, and it was the duty of the facts inconsistent with the general ver- the defendant "to use reasonable and ordidict of the jury? If they are, the law is im-nary care that the plaintiff was not injured perative that they control the verdict, "and while running said car on its tracks." The the court must give judgment accordingly." only charge of negligence resting against the Stats. of Nev. 1915, p. 110. defendant is therefore that the defendant's employés in the moving of its switch engine in question after dark carried no headlight, or other light, to warn plaintiff of its approach. Criticism of statutes authorizing special interrogatories is often indulged in by those who would place the verdict of a jury above the law, but from the decisions of this and other courts we are impressed that the practice is universally approved. By submitting special interrogatories the expense and delay of a second trial may often be avoided, and by this practice the law is much more effectually separated from the fact than by giving hypothetical instructions. Lambert v. McFarland, 7 Nev. 159. The statute also enables the court to determine if a general verdict is due to an erroneous application of the law to the facts as actually found by the jury. Weck v. Reno Traction Co., 38 Nev. 300, 149 Pac. 65. The rule of construction of special findings of facts is to harmonize them, if possible, with each other and the general verdict. To justify a judgment on special findings, notwithstanding the verdict, the former must be such as absolutely to determine the controversy in favor of the moving party. Clementson, Special Verdicts, c. 8, pp. 131-149. In determining whether the general verdict or the answers to special interrogatories control, the findings are not to be aided by intendment, and the inconsistency between the verdict and the findings must be irreconcilable; that is, it must be such that no reasonable hypothesis or inference under the pleadings and evidence can remove the conflict. In view of the findings in this case that cover every phase of the evidence, material or otherwise, we now approach the question: Can the findings be true and the verdict be permitted to stand? In the consideration of this question it must be understood that the same measure of justice, the same rule of conduct, and the same principle of law applies to the defendant corporation as to the unfortunate plaintiff. Our construction of the pleadings is that the complaint proceeds upon the theory that the plaintiff, at the time of his injuries, was lawfully upon the defendant's road. The answer of the defendant shows affirmatively that plaintiff was not there rightfully, but, on the contrary, was there in direct violation of positive instructions not to use the motorcar upon defendant's tracks under any circumstances after dark. The plaintiff in his reply to the answer seeks to justify his presence upon the track after dark, and at the place of his injuries, upon the grounds that he was [2, 3] The court defined negligence to be "the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do." It is obvious that the first element of this definition is a duty to do or not to do a particular act. It applies to the plaintiff in the operation of his velocipede car, as well as to the defendant in the management and control of its engine and cars. But from the instruction given on the part of the plaintiff immediately following this definition, the jury were, in effect, told that if they believe from the evidence that the act or omission to display a headlight, or other light, was negligence, and that plaintiff's injuries resulted therefrom, the defendant was liable; provided plaintiff's negligence did not proximately contribute to the injuries, and though they find that the plaintiff's acts and conduct did contribute to his injuries, if they believe from the evidence that the act or omission complained of was willful, wanton, and in reckless disregard for the safety or life of plaintiff, the defendant was liable, notwithstanding the contributory negligence of the plaintiff. The underlying error in the position taken by the learned presiding judge results from the assumption that a like duty to use care in the management and control of the engine rested upon the defendant, whether the plaintiff was rightfully or wrongfully upon the defendant's track at the time and place of the collision. The rightfulness or wrongfulness of the plaintiff's presence upon the track was an issuable or disputed fact left to the jury for its determination without the aid of instructions clearly and distinctly defining the duty the law imposed upon the parties in respect to the relative rights and reciprocal duties and obligations arising from the joint occupancy of the locus in quo. A general instruction which left it to the jury to apply the same standard of duty and use of care in the management and control of its trains and engines toward one wrongfully as to one rightfully upon the company's tracks is wrong. Hern v. So. Pac. Co., 29 Utah, 127, 81 Pac. 906. Where two conten evidence tends to support both, it was the duty of the court to instruct upon both theories. Zelavin v. Tonopah-Belmont Dev. Co., 39 Nev. 1, 149 Pac. 188. [4] If we clearly interpret the position taken by the learned counsel for the plaintiff, the injuries were the result of the nonperformance or omission of a plain and manifest duty for the protection of human life, and the defendant cannot be heard to say in justification of its negligence that the plaintiff was at the time of his injuries at a place where he had no right to be. This rule does not apply where the party injured, knowing of the danger, purposely or negligently puts himself in its way. The application of the rule here would, in effect, require the company to, in the movement of its switch engines after dark, provide in advance appliances for protecting persons from the result of their negligence in running velocipede cars upon defendant's tracks after dark. Such an extreme rule of liability would lead to unjust results, and would ignore the rule of contributory negligence. Even in cases of injury to an employé the law is well settled that he cannot prevail in an action for damages where his injuries sustained in the course of his employment were brought about by his own negligence in performing an act, the danger of which was so obvious and threatening that a reasonably prudent man under similar circumstances would have avoided it, if in his power to do so. Konig v. N. C. O. Ry. Co., 36 Nev. 181, 135 Pac. 141. The rule is equally well established that, though it may be shown that the defendant did not exercise care, yet no recovery will be allowed against it if it further appears that the injury would have been avoided if the person injured had exercised care on his own part. Patnode v. Harter, 20 Nev. 303, 21 Pac. 679; 20 R. C. L. 138. The plaintiff in the exercise of a gratuitous privilege in running his car upon defendant's tracks was bound to use the care a man of average prudence would use under similar circumstances, and one of the circumstances to be considered in this respect was the plaintiff's knowledge of the situation and its danger. He is held to know everything in respect to a situation and its dangers which he would have known had he exercised due care. Myers v. Boston & Maine R. Co., 72 N. H. 175, 55 Atl. 892. That it was the general duty of the defendant to display a light on its switch engine in moving after dark between the Reno and Sparks yards is not seriously controverted, but its failure so to do would not excuse the plaintiff from exercising ordinary care in voluntarily running his car after dark against positive instructions. It is obvious from the facts found that the plaintiff knowingly and voluntarily chose the wrong track, and that he negligently continued his journey after dark up to the instant of the collision. Under these circumstances he placed himself in own safety upon a signal that might or might not be given. Certainly the situation in which he placed himself was too uncertain to authorize him to omit taking those precautions which common prudence for his own safety would dictate. Railroad Co. v. Depew, 40 Ohio St. 125. When the plaintiff continued his journey after dark upon the wrong track it must be understood that the defendant's knowledge of his situation was in no respect superior to his own, nor' can it be successfully contended that the engineer's failure to anticipate the plaintiff's possible or chance presence upon the left-hand track was in any respect different from the plaintiff's failure to anticipate that the switch engine without a light would be in his path. The running of a velocipede car after dark upon a railroad track is not in itself so innocent as to excuse the operator from the duty of exercising ordinary care, not only for his own safety, but, in a sense, for the safety of defendant's employés, passengers, or others lawfully upon its tracks. When on the road with his car the plaintiff recognized that for his own safety it was necessary for him to know the traffic movement of defendant's trains. The jury specially found that the plaintiff received instructions about October 4, 1911, not to use his car upon defendant's tracks after dark; that plaintiff knew that between Reno and Sparks on the main line the left-hand track was used for the regular movement of trains and engines; that plaintiff was negligent in running his car after dark; that he was negligent in running the car westerly toward Reno after dark on the defendant's east-bound main traffic track; that he was negligent in continuing his journey after it became dark after repairing his motor, and that though the rules of the defendant permitted switching engines to run on any track between the points named, it was negligent for plaintiff to run his car on the track on which he was injured; that plaintiff as a reasonable man should have known that the defendant company was then using the left-hand track for its regular movement of trains between Sparks and Reno. That the plaintiff's negligence was one, if not the proximate, cause of his injuries is a fact concerning which reasonable minds could not differ. The only plausible pretext upon which these findings can be reconciled with the general verdict would be to hold that the jury was correct in its assumption or conclusion that, notwithstanding the plaintiff's negligence or want of ordinary care and reasonable diligence, "no light on engine" was the proximate cause of the injuries. Ordinarily proximate cause is a question of fact, but it is a term sufficiently defined to enable courts to determine if from a given or undisputed state of facts in a case of negligence a verdict or finding thereon is ted to run on either track, but, notwithstanding this rule, the jury found that it was negligent for plaintiff to run his car on the track on which he was injured. It is further insisted that the jury found that the plaintiff, as a reasonable man, should have known, or expected, or had reason to expect, that the engine ought to comply with the rule of the company and carry the prescribed light so as to warn plaintiff of danger and the approach of the engine. The effect of this finding is destroyed by the related finding that it was negligence on the part of plaintiff, notwithstanding the rule, to run his car on the track on which he was injured. The plaintiff was not justified in relying upon any such rule, as the result shows. If a person could implicitly rely upon the comif such reliance would excuse the plaintiff from using precautions for his own protection, then there could be no room whatever for the application of the doctrine of contributory negligence. evidence to weigh; nothing to be done but to decide whether from the issues, the findings, and the verdict the latter meets the requirement of the law. Ophir Mining Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550. It is not pretended that the plaintiff's negligence and wrongful entry upon the left-hand track was the occasion or remote cause of his injuries, nor can it be successfully contended that the injuries were the natural sequence of the defendant's negligence, for the reason that it affirmatively appears from the findings of the jury that the plaintiff failed to establish any duty or obligation on the part of the company to safeguard him in the running and operation of his velocipede car upon the wrong track, either by day or by night. But it is strenuously urged that it was the general duty of the company, under the cir-pany's employés performing their duties, and cumstances in this case, to keep a constant lookout, and, having failed so to do, when a proper lookout would have prevented the injuries, the company is liable. This assumption is rebutted by the findings of the jury hereinabove referred to, which show that the negligent entry of plaintiff upon the wrong track was without excuse or justification. But, as is said in the case of Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256: That, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." If it were shown that plaintiff's injuries were the result of the defendant's culpable ignorance of his perilous situation, he could appeal to the law for relief, but in view of the findings to the effect that the plaintiff in entering upon the wrong track was culpably ignorant of his danger, and that he consciously and negligently placed himself in its way, we are of the opinion that, under all the attending circumstances, the failure to keep a proper lookout was not the proximate cause of the injuries. The fact that pedestrians in large numbers were accustomed to use the tracks between Reno and Sparks as a walkway would not excuse or Was the act or omission complained of of such character as to preclude the defense of contributory negligence? We have before us a "cold, unimaginative record." The collision of the car and engine was not of an unusual or remarkable character. The jury attributed the injuries to the negligence of both contending parties. But it is insisted that the defendant's act or omission transcended the bounds of negligence and became a wanton, willful act, perpetrated in reckless disregard of plaintiff's safety. The cases that have undertaken to define in abstract terms wanton or willful conduct are legion. Before a court of review should so denominate any conduct, it should be sure it has before it the judginent of a jury on that question. I. C. R. R. Co. v. Klein, 95 Ill. App. 231; Denny v. Chicago, R. I. & P. Ry. Co., 150 Iowa, 460, 130 N. W. 364. cial finding in respect to the character of [5] In response to the inquiry for a spethe defendant's negligence, the jury were asked: "Q. If you find that plaintiff's injuries were caused by the negligence of defendant or its employés, was such negligence gross or wanton or with a careless disregard justify one of this class to voluntarily, for for the safety of plaintiff, or aggravated mis his own convenience or pleasure, run a velocipede car thereon. If injury resulted, such person would have to bear the consequences of his own wrong. Was plaintiff, who knew the traffic movement rule, and who is not shown to be excusably ignorant of his danger, to be placed in a better position than a mere stranger? It is true the plaintiff may not have had in mind, as he testified, the switch engine, and did not expect any train to be coming towards him without a light, but it was this expectation that proved to be disastrous. In excuse for not taking the proper track it is urged that by the rules of conduct?" The jury found: "Careless disregard." This finding rebuts the assumption that the act complained of was "willful," "wanton," or "aggravated misconduct," or "reckless disregard" of plaintiff's safety. Our conclusion is that the special findings of facts made by the jury are inconsistent with their general verdict. The order and judgment appealed from The cause is remanded for a are reversed. new trial. It is so ordered. S. J. Bischoff, of Missoula, for appellants. HAMMOND v. THOMPSON et al. (No. 4168.) O'Hara & Madeen and J. D. Taylor, all of (Supreme Court of Montana. May 13, 1918.) | Hamilton, for respondent. UTES. 40 HOLLOWAY, J. This action was institu 1. SET-OFF AND COUNTERCLAIM "COUNTERCLAIM"-CLAIM AND DELIVERYDAMAGES FROM WRONGFUL SEIZURE-STAT-ted by plaintiff to secure possession of certain personal property used in and about the The claim of defendants, under Revised conduct of a hotel and saloon. Some of the Codes, $$ 6760, 6803, for damages from the wrongful seizure and detention of the property property described in the complaint was in controversy in an action of claim and deliv- seized by the sheriff and delivered to the ery, is not a "counterclaim" within section 6541, plaintiff. The defendants by answer denied since it arose after commencement of the action, while a counterclaim must be one existing and plaintiff's title or right of possession, assertmatured for action in favor of the party as-ed title in themselves, claimed a return of serting it at the time of the commencement of the property seized, and damages for the the action in which it is pleaded. wrongful detention. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Counterclaim.] 2. REPLEVIN 62-CLAIM AND DELIVERYDAMAGES-PLEADING-STATUTES. Defendants' damages, in a claim and delivery action, from the wrongful taking and deten tion of the property, under Revised Codes, $$ 6760, 6803, must be claimed in order to be recovered, and, though the pleading is not a counterclaim, it is subject to the general rules governing the complaint in an action for damages. 3. REPLEVIN 83-DETENTION OF PROPERTY -VALUE OF USE-"USABLE VALUE.' the Upon the trial plaintiff failed to make out his case, and a nonsuit was granted. The trial proceeded upon the affirmative defense -so-called counterclaim-and reply thereto, resulting in findings in favor of defendants, one of which assessed the damages for the wrongful seizure and detention at $600. Plaintiff moved for a new trial, and the court directed that the motion be granted, unless within 30 days defendants remitted the amount of the damages. This they refused to do, and appealed from the order when it became absolute. In the absence of any allegation of special damages, the measure of damages for the wrong ful detention of property which has usable value, [1] 1. The claim for damages arising from as distinguished from its value for sale or consumption, is the reasonable value of its use from the wrongful seizure and detention of the the date of seizure to the time of trial, and or- property in controversy is not in any sense dinarily "usable value" means the amount for a counterclaim within the meaning of section which such property could be hired, a rule peculiar to actions in replevin, but applying only 6541, Revised Codes, since it arose after the in cases where the party claiming the damages commencement of this action. A counterhad the right to use the property, was in a sit-claim must be one existing and matured for uation to use it, and could have done so but for action in favor of the party asserting it, at the other's wrongful acts. the time of the commencement of the action in which it is pleaded. McGuire v. Edsall, 14 Mont. 359, 36 Pac. 453; Scott v. Waggoner, 48 Mont. 536, 139 Pac. 454, L. R. A. 1916C, 491. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Usable Value.] 4. REPLEVIN 72-DAMAGES TO DEFENDANTS EVIDENCE. In an action to replevy furniture used in connection with a hotel and saloon, defendants claiming damages for the wrongful taking and detention, the evidence, offered by defendants, that the gross receipts from the hotel prior to the seizure were from $150 to $175 per month, and the profits about $50 a month, and that the gross receipts from the saloon amounted to about $300 per month, and the profits about $150, did not make a case for the recovery of the usable value of the property seized, only a portion of the furnishings of hotel or saloon. 5. TRIAL 337 — INSTRUCTION LAW OF CASE. [2, 3] Section 6760 and 6803, Revised Codes, recognize the right of the defendant in a claim and delivery action, who is awarded a return of the property, to recover damages for the wrongful taking and detention of it. Such damages are merely incident to the right of return, but must be claimed in order to be recovered, and though the pleading is not a counterclaim, it is subject to the general rules which govern a complaint in an acAn instruction as to defendant's damages be- tion for damages. In the absence of any alcame the law of the case, binding on the jury, and a verdict for damages for plaintiff's wrong-legation of special damages, the measure of ful detention of the property involved, being damages for the wrongful detention of propagainst the instruction, and so against law, could erty which has a usable value, as distinnot stand. guished from its value for sale or consump Appeal from District Court, Ravalli Coun- tion, is the reasonable value of its use from ty; R. Lee McCulloch, Judge. the date of seizure to the time of the trial Action by Milton Hammond, against James (Morgan v. Reynolds, 1 Mont. 163; Gans v. Thompson and Ida Thompson, resulting in Woolfolk, 2 Mont. 458; Chauvin v. Valiton, judgment of nonsuit, and findings for defend- 8 Mont. 451, 20 Pac. 658, 3 L. R. A. 194; Chesants. Plaintiff moved for new trial, and the nut v. Sales, 49 Mont. 318, 141 Pac. 986, 52 court ordered that the motion be granted, L. R. A. [N. S.] 1199, Ann. Cas. 1916A, 620), unless defendants remitted the damages. and ordinarily "usable value" means the From such order, after it became absolute, amount for which such property could be hirdefendants appeal. Affirmed. ed (Alexander v. Bishop, 59 Iowa, 572, 13 1 THE JURY. 549-TRIAL-DUTY OF N. W. 714). This rule is peculiar to actions conflict, and thus to determine who was the agin replevin. It applies, however, only ingressor. cases where the party claiming such dam-2. CRIMINAL LAW ages had the right to use the property, was in a situation to use it, and could have done so but for the wrongful acts of the other. Wells on Replevin, § 580; Ann. Cas. 1914A, note 381. [4] The only evidence offered by defendants in support of their claim for damages was to the effect that the gross receipts from the hotel prior to the seizure were from $150 to $175 per month, and the profits about $50 per month, and that the gross receipts from the saloon amounted to about $300 per month, and the profits were about $150 per month. This evidence fails to make out a case within the rules above for more than nominal damages, in that it furnishes no criterion by which the jury could determine the usable value of the property seized, which was only a portion of the furnishings of either building. Furthermore, the evidence discloses that sufficient furnishings were left in the hotel to accommodate defendants' business so far as the sleeping rooms were concerned, and that they had voluntarily closed the dining room and saloon before the seizure. [5] 2. The order was justified for another reason. The jury found the value of the property seized to be $379.75, and in addition found the damages for its wrongful detention to be $600. Without objection the court gave Instruction No. 4, as follows: "The court instructs the jury that in this case they are only to take into consideration the reasonable value of the property, no other element of any damage alleged in the counterclaim having been proven." This became the law of the case, binding upon the jury, and the verdict for damages for wrongful detention was contrary to this instruction and against law. Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714; Wallace v. Weaver, 47 Mont. 437, 133 Pac. 1099. If it be said that other instructions authorized the jury to return a verdict for damages, it is sufficient reply to say that such conflict in the instructions was only an additional reason for setting the verdict aside. The order is affirmed. It is the duty of the jury to weigh the testimony and reconcile inconsistent and contradictory stories, but if they cannot do this, they may reject entirely the testimony of certain wit3. HOMICIDE 244(1)-MURDER-SUFFICIENCY OF EVIDENCE. nesses. BRANTLY, C. J., and SANNER, J., con- of mind of parties," was not a comment on the cur. In such case, remark of court concerning evidence of encounters preceding the fatal difficulty, that the evidence "had nothing to do with the final trouble, excepting to show the state weight of the evidence; the expression "state of mind" including in its general scope a temporary condition of feeling as well as a continuing condition, connoting a trait of character or disposition, for, in its broad sense, the term "state" is defined as the circumstances or condition of the being or thing at a given time. 12. CRIMINAL LAW 656(3) — TRIAL - RE MARKS OF COURT. It is entirely proper for a trial judge to state his reasons for his rulings made in admitting and excluding evidence, but not to express an opinion as to the weight of a particular item. |