196 P. 521 | Mont. | 1921
delivered the opinion of the court.
Upon the trial of this cause, the court sustained a motion for a nonsuit and directed a judgment dismissing the complaint. From that judgment and from an -order denying a new trial these-appeals are prosecuted.
The plaintiff was a passenger for reward upon defendant’s train from Belgrade to Bozeman. When the train had stopped
Upon the trial the plaintiff testified: “The way the accident happened to me was that I was coming down the steps and I held to the rod with my left hand, and as I stepped with my right foot on the lower step, I reached my hand to the brakeman, and when I put my foot down on to the foot-box, I noticed a piece of ice and before I could stop myself I stepped and my foot slid and turned; it slid off the box and I crushed up to the ground. It was my left foot that I stepped on to the box with. I tried to avoid the piece of ice on the box and I couldn’t do it because I had started to make my step. The piece of ice was about the size of a silver dollar; it might have been larger or at might have been smaller. The piece of ice on the box was either loose or else my shoe loosened it as my foot slid. The brakeman had hold of my hand as I stepped. I fell full length on .the platform. ” The brakeman, called as a witness for the'plaintiff, testified: “I don’t know whether I would have seen any ice on the step-box at the time when she stepped upon it or not. It could have possibly been there and I not see it. If it had been there and I had seen it, it would have been my duty to have removed it. * * * There was no ice on the step-box when I put it down. I never saw any on it at any time after that.” He testified further that it was his duty to assist passengers in getting on
Counsel for plaintiff, in concluding his brief, insists that, having shown the injury and the cause of it, a prima facie ease of negligence was made out; and a few decided cases from other jurisdictions are cited which, in principle, lend support to the contention, but the subject has been covered thoroughly by our own decisions and, since they are in harmony with the overwhelming weight of authority and are grounded in sound reasoning, we are not disposed to depart from them.
The doctrine of the maxim res ipsa loquitur is applied to
The right to recover for personal injury is grounded in negligence and the burden of pleading and proving negligence is upon the injured party. Whenever, therefore, the injury
In the present controversy no 'contention is made that
Counsel for appellant insists that this case is to be determined by the» decision in Garvin v. Butte Electric Ry. Co., 54 Mont. 196, 169 Pac. 40; but the facts of the two cases ape so dissimilar that it is impossible to, deduce a rule based upon analogy. In the Garvin Case the carrier not only knew of the •presence of snow and ice upon its car-steps, but much of the snow had been deposited there by the conductor of the ear who had shoveled it out of the car vestibule a -considerable period of time before the plaintiff, Garvin, undertook to alight from the car. Under these circumstances we held that it was a proper ease for the jury to determine “whether the defendant company, through its agents, knew, or in the exercise of reasonable diligence should have known, of the danger, and had a reasonable opportunity to remove the snow and ice from the step of its-car.” In the opinion in the Garvin Case, repeated reference is made to the rule of our statute (sec. 5300, above) which imposes upon the carrier the burden of exercising, toward the passenger for hire, the utmost care. Counsel for defendants urge that the rule is not applicable to the case of a passenger alighting from ,a standing train, but that the carrier’s duty is measured'by the rule of ordinary care. It is beside the mark to discuss the subject, for, in our view of the case made, the ruling of the trial court was correct upon either theory.
Actionable negligence arises only from a breach of legal duty (Jonosky v. Northern Pac. Ry. Co., 57 Mont. 63, 187 Pac. 1014), and it follows that, to make out a prima facie case, plaintiff must have introduced evidence tending to show that
If the trial court had denied the motion for nonsuit and the case had been submitted upon the evidence now before us with a favorable result to plaintiff, upon what evidence could the verdict be said to rest ? Could the jury say that the brakeman should have kept, his eyes upon the step-box constantly? The evidence establishes the fact that he could not do so and discharge his duties to the passengers generally and to this plaintiff in particular. Could the jury say that the ice was upon the step-box for a sufficient length of time that the brakeman, in the discharge of his duties, should have discovered and removed it ? An affirmative answer could only rest in bare speculation, for, so far as the evidence discloses, it may not have been there for more than a second or a few seconds at most.
This is not a case where the obstruction itself bore evidence of its continued presence for any appreciable length of time, and there is no room for mental process to define an interval during which reasonable prudence or the highest degree of skill and care on the part of the brakeman should or could have been at work to protect the plaintiff against the hazard created by .the momentary presence of the ice upon the box.
These observations illustrate our view of the evidence and indicate our conclusion that there is not anything in the record which tends to prove that the brakeman failed in any respect to discharge the duties which his position imposed; and since .there is no evidence which establishes negligence or from which it might be inferred, the trial court properly sustained the motion for nonsuit. Upon similar fact statements the same conclusion has been reached by other courts. (Serviss v. Ann Arbor R. Co., 169 Mich. 564, 135 N. W. 343; Bernhardt v. Western Pennsylvania R. Co., 159 Pa. St. 360, 28 Atl. 140;
Tbe judgment and order are affirmed.
Affirmed.