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KENNON v. GILMER. GILMER V. KENNON.

decided: May 13, 1889.

KENNON
v.
GILMER.

GILMER
v.
KENNON.



ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA.

Author: Gray

[ 131 U.S. Page 22]

 MR. JUSTICE GRAY delivered the opinion of the court.

This action was brought April 4, 1882, in a district court of the county of Deer Lodge and Territory of Montana, against Gilmer and others, common carriers of passengers for hire by stage coaches between the towns of Deer Lodge and Helena,

[ 131 U.S. Page 23]

     by Kennon, a passenger in one of those coaches, to recover damages for personal injuries sustained by him on June 30, 1879.

The complaint alleged that the defendants were guilty of negligence in failing to provide a safe and competent driver and safe and well broken horses, by reason of which, and of the negligence and mismanagement of their servants, the horses became unmanageable, broke the pole of the coach and took fright, so that it was apparently unsafe for the plaintiff to remain in the coach, and he jumped to the ground and in so doing broke his leg, and it became necessary to amputate it, whereby he sustained damages in the sum of $25,000, and was obliged to pay $750 for necessary medical and surgical expenses. The answer denied these allegations.

Before a jury had been called, the defendants moved for a change of venue, on the ground that an impartial trial could not be had in the county of Deer Lodge; and in support of the motion filed an affidavit of one Riddle, deposing "that he is agent of defendants in the above entitled cause; that he resides in the county of Deer Lodge, where said action is depending; that he is acquainted with and knows the general sentiments and opinions of the public in reference to said action and the parties thereto, and from his knowledge of such public opinion has reason to believe and does believe that the defendants cannot have a fair and impartial trial of said cause in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, as far as concerns said action; that one trial has already been had of said cause in this county, in which heavy damages were awarded to the plaintiff by the jury which tried said cause; that said verdict and the judgment rendered thereon have been generally canvassed and commented upon by the public in a manner favorable to the plaintiff and unfavorable to the defendants, and thereby has [been] produced a general prejudice against the defendants which cannot fail to have an influence on the second trial of said cause."

The court withheld its decision on the motion until a jury had been called and examined on their voir dire, and then denied it, and the defendants excepted to the denial.

[ 131 U.S. Page 24]

     At the trial, the defendant took exceptions to evidence introduced by the plaintiff, and to instructions given to the jury at his request. The jury returned a verdict for the plaintiff, assessing his damages at "the sum of $20,000 for general damages, and also the sum of $750 for medical expenses and surgical operations."

The defendants moved for a new trial, for excessive damages appearing to have been given under the influence of passion or prejudice, for insufficiency of the evidence to justify the verdict, and for errors of law in the rulings excepted to. The motion was denied, and judgment entered on the verdict; and the defendants appealed to the Supreme Court of the Territory, which ordered the judgment to be reduced to the sum of $10,750, and affirmed it for this amount. Its opinion is reported in 5 Montana, 257.

Writs of error were sued out by both parties, by the defendants on January 1, 1885, and by the plaintiff on May 1, 1885, both returnable at October term, 1885; and the plaintiff's writ of error was docketed first in this court.

The questions arising out of the exceptions taken by the defendants to the rulings of the inferior ...


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