216 P. 765 | Mont. | 1923
Lead Opinion
delivered the opinion of the court.
This is an action for damages for personal injury sustained by the plaintiff on or about October 23, 1920, while employed as a brakeman on a freight train operated by the defendant company on its branch line between Bozeman and Menard, as a result of having come in contact with sagging telephone wires across the defendant company’s track at Huffine siding. The section foreman having charge of the track at, the point where the accident occurred was joined with the railway company as a party defendant. The case was tried to a jury. A verdict was rendered in favor of the plaintiff against both the defendants, wherein his damages were assessed at the sum of $20,000, and upon which judgment was duly entered. The defendants’ motion for a new trial having been denied by the court, the cause is now before us on appeal from the judgment.
The plaintiff predicates his right to recovery of damages upon the alleged negligence of the defendants in failing to discover and remedy the condition of the overhanging wires prior to the passage of the train. The plaintiff’s complaint was demurred to, both generally and specially by the defendants separately, which demurrers were overruled. During
Twenty assignments of error are specified by the defendants, but in our view of the case but three questions raised need be considered for its proper disposition, viz.: (1) The sufficiency of the complaint; (2) the adequacy of the evidence; and (3) excessiveness of the verdict. These questions will be considered in their order.
1. The negligence of the defendants resulting in plaintiff’s injury is alleged in the complaint to have consisted of negligently and carelessly failing to inspect the track at the point of the accident for “several days,” and in negligently, recklessly and carelessly allowing and permitting the telephone wires to hang over the railroad track at the place of plaintiff’s injury at the “time and for several days previous thereto, * =s # ai Suc.h a distance above said tracks and so near thereto that it was and became dangerous and unsafe for employees of the defendants riding on top of said ears to properly perform their duties thereon, and to. be on and about the top of said cars; * * * that said defendants and each of them * * ® well knew the existence of said wires and of the fact that the same were over said tracks and at such a distance that the same would not allow sufficient clearance, and at such a distance so that the same was dangerous and unsafe, * * * but that the defendants, and each of them, negligently, recklessly and carelessly failed and neglected to take any steps whatever to remove said wires or to raise the same so that workmen could be on and about the tops of railway freight-cars without danger of being caught by said wires; * * * that while this plaintiff was so employed by defendant railway company * * * and was on top of one of defendant railway company’s railway freight-cars, acting within the scope and course of his employment, * ® * said defendant railway company * * * negligently and carelessly ran said train into and against said overhanging wires, and said plaintiff was caused to be caught in and by said wires
The complaint must state the facts constituting the cause of
“Every person who suffers detriment from the unlawful
Tested by these fixed standards, we hold the complaint
"We appreciate that this court has heretofore ruled that a complaint alleging the existence of a defective condition “for a long time” prior to an accident is too indefinite to impose any duty to make repairs (Martin v. Northern Pac. Ry. Co., 51 Mont. 31, 149 Pac. 89; McEnaney v. City of Butte, supra; Phillips v. Butte Jockey Club, supra; Boyle v. Chicago, M. & St. P. Ry. Co., supra), and therefore fails to state a cause of action. In those cases, however, there was reason for the application of such rule under the ultimate facts alleged constituting the basis of plaintiff’s right of recovery. They are clearly distinguishable. They are predicated on the necessity of alleging notice to defendants, actual or constructive, of the existence of the defects causing injury for a time definite prior thereto. The Martin Case involved the liability of the defendant company for the death of a seven year old boy in its yards, under a complaint alleging that a freight-car, in
In the case before us, notice of the condition complained of is alleged both constructively and actually. As to constructive notice, it is alleged that the defendants negligently and carelessly failed to inspect the track at the point of the accident “for several days,” and negligently, recklessly and carelessly allowed and permitted the telephone wires to hang over the railroad track at the place of plaintiff’s injury “at the time and for several days previous thereto,” at such a distance above the track and so near thereto that they were dangerous and unsafe for defendants’ employees in the performance of their duties. In our opinion these allegations are sufficient to allege constructive notice to the defendants in this case by reason of failure to inspect the railroad track. “Several days” prior to the accident is practically as definite as to say, “Tuesday, Wednesday, Thursday and Friday” before the accident. Either method of allegation of the ultimate fact gives the defendants definite information of the negligence charged. In the cases above referred to there was no duty of the defendants alleged to have been breached for a time definite sufficient to charge defendants with constructive notice; whereas, in this instance, the defendants are told that the obstructions complained of were by them negligently permitted to remain in such dangerous condition “several days.” The charge is sufficiently specific to enable defendants to meet it. Actual notice is also charged as shown by the above resume of the allegations of the complaint.
2. The burden of proof rested upon the plaintiff, and we are now brought to a consideration of the evidence.
It appears that the defendant railway company operates a branch line of railroad in Gallatin county from Bozeman north to Menard, a distance of about twenty-five miles, over which a combination train for the carriage of freight and passengers is operated once a week, on Saturdays. Huffine sid
On Wednesday, October 20, 1920, there was a heavy snowstorm accompanied by some sleet, which hung to the telephone wires, causing them to sag. On Tuesday or Wednesday preceding the accident, the defendant ITulehan, with his section crew, of which one Albert Henry Kirch was one, worked at the point Avhere the accident occurred. Kirch, as a witness for the plaintiff, testified: “I recall that it was Tuesday or Wednesday after the Saturday I first worked there that I worked on this line. I remember at that time of digging out the crossing at Huffine. While I Avas there, Mr. ITulelian
Harrison• Adams, a witness for plaintiff, testified: “I had occasion shortly before he was hurt to be under the telephone wires overhanging the tracks of the defendant company at the crossing just south of Huffine siding. To the best of my recollection that was on Thursday the 20th of October— the Thursday before the accident. That day I had been up to Boomer’s helping him fix some flooring for a cow bam. That day when I was coming home Mr. Taylor was fixing the wires down below the crossing. I came along there, and instead of going down the track home I went on out to where he was. The wires were down below him. I saw what he did in trying to remedy the condition of those wires. After he had fixed the wires there where he was, we went on down to the comer and I saw that corner pole there. On that Thursday afternoon when I saw it, it was leaning over quite a bit. it # « On .that Thursday after I was there, the wires were sagged down some between the poles. Mr. Taylor did not put them up at the corner; he did not bother the comer at all. He pulled them up over the crossing a little before we went down to the corner and tied them to a fence post. The wires right there which were attached to the pole which was leaning over were hanging down also, but he did not do anything with them that evening. I did not do anything with them that evening either. On the day following—Friday—to the
There is no dispute but that on Friday, preceding the accident, the defendant Ilulehan and his helpers started out over the line to inspect it before the train should be run over it on the following day, as was customary; and that on account of snow and ice on the rails he could not run his gas car farther than about one mile and a half from Bozeman, was compelled to abandon his inspection, and no inspection was then made. Defendants’ witnesses show positively that considerable fixing was being done to the telephone line at the place of plaintiff’s injury, for several days preceding during the week of the accident. Earl Miller testified that in October, 1920, he was employed as a lineman by the Pass Creek Telephone Company, and that about October 20, 1920, and previous thereto, he did some work on the telephone line near Huffine siding. His testimony and that of defendants’
It is shown that the smokestack of the engine extends to a height of fourteen feet six inches above the rail, and that the height of the six ears which were next to the engine, beginning with the first one in line, are as follows: (1) St. P. No. 54104, to top of running-board, 13' 3", over all, 14' 6%"; (2) Penna. No. 93487, to top of running-board, 13' 519/32”; over all, 14' 1%"; (3) D., L. & W. No. 44189, to top of running-board, 13' 6%", over all, 14' 1%" (4) A., T. & S. E. No. 30358, to top of running-board, 12' 83,4", over all, 14' 1"; (5) C. & A. No. 36910 to top of running-board, 13' 4%", over all 13' 10%"; (6) Mo. Pac. No. 16878, to top of running-board, 12', over all, 14' 6". Thus, from the
In these particulars, the court correctly instructed the jury as to the law, without objection vis.: “The only theory upon which the defendants can be held liable is that the wires had been sagged, and that the defendants knew that they had been sagged, or in the exercise of ordinary care should have known it prior to the time the train upon which plaintiff was riding was operated at the point of injury.” Further, as to the defendant railway company’s duty: “It has the duty only of making reasonable inspections of its tracks at reasonably frequent intervals, and before plaintiff can rely upon any alleged failure to inspect he must show by a preponderance of the evidence that reasonable inspection was not made, and that, if it had been made, it would have disclosed that the wires were sagged so as to leave insufficient room for the passage of trains.” On the question of notice: “That to establish constructive notice the plaintiff must prove by a preponderance of the evidence that the wires were sagged a sufficient length of time prior to the accident, so that defendants in the exercise of ordinary care should have discovered them.” If the wires w'ere sagged on Wednesday,
3. Was the verdict so excessive as to indicate passion and prejudice of the jury? The plaintiff was thirty-five years of age, married, and had thnee children. At the time of his injury his earning capacity was about $150 per month. He testified that since his injury he has been unable to work, but we are satisfied that the medical testimony does not warrant the conclusion that he is permanently incapacitated. He was rendered unconscious by his fall from the train, and remained so. for three days, and was sick in the hospital for about one month. He described his injury and physical condition at the time of the trial as follows: “When those wires hit me I was thrown to the ground from the top of the car. That is the last thing I remember of it. The next thing I remember is being up here at the hospital for nearly a month, and the last week I was there I remember a good bit of what went on there. I do not remember of being brought back
There is conflict in the testimony of the medical experts as to plaintiff’s physical and mental condition, and the permanent character of his injury; but all are agreed that he has an impairment of vision. Defendants’ expert witnesses say his eyes can be materially aided by the use of proper glasses. As to his mentality, it is noteworthy that he made an excellent witness, indicating recollection of every important detail of fact. He even qualified and gave expert testimony as an experienced railroad man. His testimony demonstrates that neither his mind nor his memory has been materially affected.
From a very careful review and study of all of the evidence respecting the plaintiff’s injury, pain and suffering, and viewing same in light most favorable to the plaintiff, we are constrained to the opinion that the award made by the jury is excessive, and that it may only be accounted for on the theory of the passion and prejudice of the jury against the defendant railway company. So that the verdict must be by us reduced to such amount as appears just and rea
Applying the rule to this case, the judgment is reversed and a new trial ordered, unless the plaintiff shall file his consent in writing with the clerk of the district court of Gallatin county to a reduction of the amount of the judgment to $7,500 within fifteen days after the remittitur shall have
Reversed and remanded.
Dissenting Opinion
I dissent. To my mind the award indicates that the jury believed from the evidence that the plaintiff’s injuries were very severe and lasting. One physician, an eye and ear specialist, testified that “the tendency of all optic neuritis is to progression” and often results in “a permanent impairment to the vision of both eyes.” Another physician testified that he found that the plaintiff was a great deal below par mentally and physically; that “fracture of the skull, together with a concussion of the brain, have a tendency to lower the mentality of the patient and probably produce a form of insanity or epilepsy.” The defendant’s expert admitted that bleeding from the ears would indicate to him “a fracture of the skull or a severe concussion of the brain.” This evidence, in my opinion, amply supports the verdict and repels the thought that it was not the product of dispassionate minds. It may be that, in some instances, jurors, through miscalculation or departing from their oaths, have allowed excessive damages; but, if appellate courts may arbitrarily fix the amount of recovery with no better standard than the present case affords, they can only do so at the expense of judicial principles established as long ago as 1763 and still recognized by courts of great distinction.
In Huckle v. Money, 2 Wills. 205, Lord Chief Justice Pratt, a jurist of pre-eminent ability, declared that interfering with verdicts “would be laying aside juries.” Proceeding, he
This sound judicial utterance was expressly adopted by the supreme court of the United States in the case of Scott v. Donald, 165 U. S. 58, 41 L. Ed. 632, 17 Sup. Ct. Rep. 265.
The order of this court invites the plaintiff to infer that he must accept $12,500 less than the damages fixed by the jury, or submit to the expense and delay attendant upon another trial, and the added chance that the trial court and another jury may be influenced by the views expressed in the majority opinion.
My dissent is limited to the holding that the damages are excessive. With all else said in the opinion, I agree.