Armitage v. Chicago, Milwaukee & St. P. Ry. Co., 166 P. 301

Armitage v. Chicago, Milwaukee & St. P. Ry. Co.

166 P. 301 | Mont. | 1917

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On December 2, 1914, the defendant, an interstate carrier, brought its east-bound freight train No. 74 into the yards at Harlowton, placed it upon a side-track, and cut off the locomotive. It was necessary to hold the cars by means of the handbrakes, and the plaintiff, head brakeman upon the train, in the discharge of his duties undertook to set the brakes upon car No. 61,981, but the brake mechanism gave way and plaintiff was injured. He brought this action to recover damages and prevailed in the lower court. The defendant has appealed from the judg*45ment and from an order denying its motion for a new trial. The specifications of error are presented in four contentions.

1. It is insisted that there is a variance between the allega[1] tions of negligence and the proof, which amounts to a failure of proof. It is charged in the complaint that the defendant “negligently, recklessly and carelessly suffered, caused and permitted the said braking appliance, and the chains, mechanisms and fastenings thereon [on car 61,981] to be and become defective, old, battered, worn, out of repair, broken and weak, and made of insufficient and improper material, ’ ’ and that this negligence was the proximate cause of plaintiff’s injury. The evidence discloses that the car was equipped with handbrake appliances, consisting, among other things, of the brake staff, w'heel, and ratchet, a chain attached to the staff, which passes over a pulley and back under the car to a reach-rod, which in turn is attached to an equalizer lever. The front end of the reach-rod is bent upward and back, forming a large hook, and the design of the equipment is that the chain shall be fastened to this rod by having the last link placed over the hook. It is the theory of plaintiff’s case, supported by his testimony, that instead of the chain and rod being connected, as they were intended to be, the last link of the chain was not over and about the hook, but was lashed to the underside of it by means of some old, rusty baling wire, and that it was this wire which broke and caused plaintiff’s fall and consequent injury. The wire served the purpose of a connecting link between the chain and reach-rod, and in our opinion is fairly comprehended within the general descriptive terms employed in the complaint. It is only when a particular claim or defense is unproved in its general scope and meaning that it can be said that there is a failure of proof, or a fatal variance, as it is commonly miscalled. (See. 6587, Rev. Codes.) The complaint is laboriously prolix, but the rules of pleading and practice are now very liberal. Section 6585, Revised Codes, provides: “No variance between the allegation in a pleading and the proof is to be deemed material, un*46less it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. ’ ’

2. It is contended that the verdict is against the law as declared in the court’s instructions 8, 9 and 10. Instructions 9 and 10 relate to the burden of proof and to the quantum, of proof necessary to warrant a verdict for the plaintiff. ¥e are satisfied that there was sufficient evidence to justify a submission of the case to the jury, and that neither of these instructions was disregarded. Instruction 8 will be considered in connection with the next assignment.

3. This action was brought under the Federal Employers’ [2] Liability Act of April 22, 1908 (35 Stats, at Large, 65, Chap. 149), and the Safety Appliance Acts of March 2, 1893 (27 Stats, at Large, 531, Chap. 196), March 2, 1903 (32 Stats, at Large, 943, Chap. 976), and April 14, 1910 (36 Stats, at Large, 298, Chap. 160). The last-mentioned Act requires that all cars subject to the provisions of the Act must be equipped with “efficient hand-brakes.” It is now settled beyond controversy that these Safety Appliance Acts impose upon the carrier an absolute duty (1) to equip its cars with the prescribed appliances, and (2) to maintain such appliances in a secure condition. (St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 Sup. Ct. Rep. 616; Chicago B. & Q. Ry. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582, 31 Sup. Ct. Rep. 612; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 55 L. Ed. 590, 31 Sup. Ct. Rep. 617; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33, 60 L. Ed. 874, 36 Sup. Ct. Rep. 482.)

Under instructions of the court, the jury, in response to special interrogatories, found in effect that the reach-rod and chain met the requirements of the Federal Acts and the regulations of the Interstate Commerce Commission, if the chain had been hooked over the end of the rod as intended; and it is now the contention of appellant that it did not violate the law, even though some one wrongfully connected the chain and rod by means of the baling wire which would not withstand the force necessary to set the brakes. Counsel for appellant epito*47mize this contention as follows: “All that is required is that the brake-rod and chain be constructed according to the design and requirements of the Interstate Commerce Commission, so they can be hooked together in the usual manner for the proper operation of the appliance. * * * The perfect braking appliance did' not become inefficient or unsafe because someone went to the trouble of wiring the link on the end of the brake-chain to the hook on the end of the brake-rod.”

While no one of the cases cited above involved a state of facts similar to the facts of the ease before us, yet, as we understand the construction placed upon the Safety Appliance Acts by those eases, the principle involved in each of them is the same as that presented in this instance. Certainly it could not be contended that if car No. 61,981 had been turned out of the shops with the hand-brake appliances loaded on the car, there would have been a compliance with section 2 of the Act of 1910, even though each component part was in perfect condition. Neither, in our opinion, would the requirements of the Act have been met if the defendant in the first instance, in adjusting these appliances to the car, had deliberately fastened the chain to the rod by means of an old rusty wire which would not withstand the strain necessary to set the brakes. The Act clearly requires that the carrier shall not only furnish the necessary parts of the braking apparatus, but it shall furnish them so properly adjusted and connected that the brake will be efficient in the condition in which the car is turned over to the employee. To make a more concrete application: The absolute duty was imposed upon defendant to furnish this car with the several parts of the hand-braking appliances so securely connected that the brakes could be set with safety in the ordinary routine of a brakeman’s duties. If it was necessary to that result that the chain be hooked over the end of the rod, then the duty- was imposed upon the carrier to see that such connection was made in the first instance.

As we understand the decisions in the cases above cited, the same high standard of duty is imposed upon the carrier to main*48tain the appliances in a secure condition as is imposed upon it to furnish the equipment in the first instance; and if this be correct — -and we think it is — then there was imposed upon this defendant an absolute duty to see that the chain and rod were connected securely at all times, and its failure to do so constitutes a breach of its statutory duty.

Instruction 8 is couched in language whose meaning is very obscure; but, assuming that counsel for defendant, who proposed and secured the trial court to give it, understand its meaning, we adopt their interpretation. In their brief they say: “Instruction No. 8 told the jury that the Safety Appliance Laws, or the orders of the Interstate Commerce Commission, did not prescribe the manner of fastening the brake-chain on to the brake-rod, or what kind of a link or hook should be used, and that appellant was not bound to select the best or safest appliance, nor the best method of its operation, and if at the time of its selection, hooking the chain over the gooseneck on the end of the rod was "generally used in fastening the brake-rod and chain together, and was reasonably adapted to the purpose,- and kept at all times in reasonably safe, efficient and suitable condition for the servant to do his work, appellant had discharged its duty and was not liable.” If the instruction has any meaning or any application to the facts of this ease, it must be held "to state that the carrier discharged its duty under the laws and regulations of the Interstate Commerce Commission, if it equipped the car with proper hand-braking appliances, consisting, among other things, of the chain hooked over the end of the rod, and kept such appliances at all times in a reasonably safe, efficient and suitable condition for the servant to do his work. Under the evidence that the proper method of connecting the chain and rod was by hooking the end link of the chain over the hook on the rod, the jury must have understood that the carrier’s duty could be discharged only by providing these parts properly connected and by keeping them connected in a reasonably safe, efficient and suitable condition for the servant’s use. If this is not the meaning of the instruc*49tion, we are at a loss to understand it. If it is the meaning, then it correctly measures the carrier’s duty as stated above, and the verdict is not contrary to it, for the evidence offered by plaintiff discloses that the carrier did not keep the chain and rod connected in a safe, efficient and suitable manner for the servant’s use. There is not any evidence that plaintiff connected the rod and chain by means of the wire.

4. It is contended that the verdict for $6,000 is so excessive [3] as to indicate that it was given under the influence of passion and prejudice. That the plaintiff suffered some injury is not disputed, but the extent of the injury is the subject of controversy. That there is a sharp conflict in the evidence upon this question cannot be gainsaid. If the jurors believed the testimony of Drs. Blair, Crabbe, Judd and Willard, their verdict cannot be justified; but they were at liberty to refuse to believe it, and apparently exercised their prerogative accordingly. From the testimony of the plaintiff, his wife, and Dr. Seitz, the jury could draw the legitimate inferences that plaintiff suffered a severe rupture, which permits the intestines to come down into the scrotum on the left side; that he sustained an injury to the back, which affected the nerves branching off from the lower portion of the spinal column; that this injury was of such severity that there was discoloration and swelling on the back at the time of the trial, more than six months after the injury; that as a result of the injury he has been rendered sexually impotent; that he is very nervous and has lost much sleep; that at the time of the accident he was an able-bodied man, forty-one years of age, with more than twenty years’ experience as a railroad man, was a brakeman and extra conductor earning $115 per month as a brakeman, had an expectancy in life of twenty-seven years, and had been unable to pursue his work after the accident and up to the time of the trial. There is some evidence also to justify the inference that the injury to his nervous system is permanent and will probably be progressive. While subsequent events may demonstrate that the jurors were exceedingly liberal in their allowance, the amount *50of the verdict, in the light of the evidence, is not so large as to shock the conscience, and we do not feel justified in substituting our judgment for that of the jury.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.