119 P. 794 | Mont. | 1911
delivered the opinion of the court.
Action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. Appeals from a judgment on verdict for the plaintiff, and from an order denying a new trial.
The complaint alleges that the defendant corporation “operated a line of railroad in and through the city of Billings, and in connection therewith maintained and operated a passenger station, platform, and sidetracks in said city for the purpose of accommodating passengers using said line of railway and persons traveling to and from the city of Billings by rail- • road.” This allegation is admitted by the answer. The testi
H. T. Brown, defendant’s car foreman, testified: “I was there to see that things went right. I did not see any water hole open there that night. I could not watch all of them — twelve or thirteen of them — and I could not watch each one. I was there to see that these holes as much as I could were kept closed. If left open it was wrong, and I was there to correct anything that was wrong. Eighteen or twenty trains came in from 3 o’clock until midnight on the afternoon and evening of January 7.”
Swanson, an employee of the defendant company who was on duty that night, testified: “I didn’t see any of these water holes in the platform open that night because the man [men] that opens these and waters the coaches have special orders not to leave none of these holes open, and if you do and it is known to anyone you will get discharged. The chances are they were open. I didn’t see none. I couldn’t say whether they were or not. We see them open every day. I seen them take a hose off and put the cover on.”
It is contended that there is not any evidence to show who removed the cover, and that it may have been done by some one not in privity with the defendant. We think this latter consideration may be disregarded. There is not any evidence or even a suggestion that an outsider ever opened one of the water holes. To do so would have been a trespass which is not to be presumed. The argument on this point is founded in mere conjecture, which is not permissible. While it is also true that negligence is not to be presumed, still, we think, there is testimony sufficient to warrant the conclusion that the hole in question was left uncovered by some employee of the defendant. Let it be borne in mind that the depot grounds belonged to the defendant, and that it, through its employees, was in the exclusive management and control of the platform and water holes and constantly using the latter. There was no defect in the platform or appurtenances — no breaking thereof; no unnatural, uncommon or extraordinary situation is disclosed. On the contrary, the physical condition of the water hole — that is, the condition of being open — was in strict accord with the plan of its construction and use. We think the railroad company, in the absence of evidence to the contrary, may fairly be presumed to be responsible for a condition of its property which is in entire
The supreme judicial court of Massachusetts, in Smith v. Boston Gaslight Co., 129 Mass. 318, where the trial court told the
2. Plaintiff alleged in her complaint that she was “injured and bruised upon her right ankle, leg, hip, and body.” She was allowed to prove, over objection, that she had suffered an injury to her uterus. We find no error in this. The word “body” comprehends all portions of the body, inside and outside, and the general term employed advised the defendant that she would prove injuries to portions of her body other than her ankle, leg and hip. The indefinite and uncertain allegation of the pleading might have been taken advantage of before answering, but the point raised for the first time at the trial came too late. A general allegation of bodily injury is sufficient to warrant a trial court in receiving evidence of any injury to the person, in the absence of a special demurrer or demand for a bill of particulars. (Gordan v. Northern Pacific Ry. Co., 39 Mont. 571, 104 Pac. 679.)
The judgment and order are affirmed.
'Affirmed.