166 P. 301 | Mont. | 1917
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
1. It is insisted that there is a variance between the allega
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’
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
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
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
4. It is contended that the verdict for $6,000 is so excessive
The judgment and order are affirmed.
Affirmed.