152 P. 481 | Mont. | 1915
Lead Opinion
delivered the opinion of the court.
Plaintiff brought this action for damages for the loss of his right hand through the alleged negligence of the defendant. At the trial the court sustained defendant’s motion for nonsuit. Judgment was entered accordingly. Plaintiff has appealed.
At the time of the accident plaintiff, with four others, was employed by C. H. Strowbridge and Fred H. Holman in the operation of an ordinary circular woodsaw which was‘propelled by steam. Strowbridge and Holman had contracted with the defendant, through Jacob Louk, the foreman in charge of the ranch, to saw a quantity of logs into lengths rendering them suitable for use as stovewood on defendant’s ranch. They were to furnish their own machine and servants, and to receive $2.50 per hour. Strowbridge was not present. Holman was operating the machine. The logs were passed from left to right. To plaintiff was assigned the duty of operating the saw, which required him, as a log was passed, to force the carriage back with his left hand to bring the log in contact with the saw, and at the same time to hold the log steady by placing his right hand on it,
The complaint charges that while the plaintiff was engaged in the work of feeding the logs to the saw, under his employment aforesaid, the servants of the defendant negligently shoved against the log which plaintiff was feeding to the saw, another log which they were about to put upon the carriage, thus pushing the former and forcing plaintiff’s hand upon the saw, whereby it was cut off at the wrist. The answer, besides denying all the allegations of the complaint, alleges as special defenses that the plaintiff assumed the risk, and that the injury was caused by the negligence of his fellow-servants. All the evidence tendered by plaintiff was admitted without objection.
At the outset we are met with the contention by counsel for the defendant that the complaint does not state a cause of action, and that, however meritorious the case disclosed by plaintiff’s evidence, the judgment must be affirmed for this reason. The sufficiency of the complaint was not challenged in the trial court either by demurrer or by objection to the admission of evidence, and, though one of the grounds of the motion for non-suit was that the pleadings are not sufficient to support a judgment, this ground was apparently not seriously urged upon the attention of the court. The order sustaining the motion is couched in general terms, but the court seems to have proceeded upon the theory that the evidence is insufficient to make a case for the jury.
It is well settled by the decisions of this court that the
It is elementary that, when a plaintiff seeks recovery for
We shall not quote the complaint in extenso. It is defective in that it does not state what was the relation of the defendant to Strowbridge and Holman. It does not allege that they were sawing wood for the defendant or that they were upon its prem
It appears from the above summary of the evidence that Strowbridge and Holman had an independent contract to saw a quantity of wood for the defendant, and were upon its premises for that purpose. They were furnishing their own employees, and needed no assistance. Louk, with his two subordinates, who inferentially acted under his direction, volunteered to assist in the accomplishment of the work. It does not appear whether Louk had hold of the log which pushed plaintiff’s hand upon the saw, but, inasmuch as he had assumed to perform Worcester’s duty, and this duty required him to assist in putting logs upon the carriage and to pass them to the saw, the fact that the injury occurred while he was engaged in doing this warrants the inference that he either alone or by the aid of his subordinates, in assisting the employees, of Strowbridge and Holman in bringing up the log, negligently thrust it forward too rapidly, and thus caused the plaintiff’s injury. That the employees of Strowbridge and Holman were negligent and their
We understand the accepted rule to be that the fellow-servant doctrine has no application to a case in which the injury
That Louk and his subordinates were not the servants of
The servant of one master may temporarily enter the service
It remains, then, to inquire whether they were acting within the scope of their employment. In determining this question the inquiry is not, Was the servant at the particular time acting in obedience to the direction of the master? but, Was he acting
As the solution of the question turns in each ease upon the proper inference to be drawn from the facts, if they present no conflict and furnish the basis for but a single inference, and
The judgment is reversed and the cause remanded for trial on the merits.
Reversed and remanded.
Concurrence Opinion
I concur in the result reached above. As I understand the general rule announced in Moss v. GoodJiart and Lackman v. Simpson, to which reference is made, it is that, when a cause has been tried, and evidence has been admitted without objection which tends to prove a material fact which should have been pleaded, but was not, the deficient pleading will be deemed to have been amended to conform to such proof.