211 P. 767 | Mont. | 1922
prepared the opinion for the court.
This action is brought by the administratrix of the estate of Henry L. Kern, deceased, to recover for his death, which occurred at Roundup, Montana, in January, 1920, basing her action upon the federal Employers’ Liability Act of April 22,1908, 35 Stats. at Large, 65, Chapter 149 (8 Fed. Stats. Ann., p. 1208, etc.; U. S. Comp. Stats., secs. 8657-8665), and the Safety Appliance Acts of March 2, 1893, 27 Stats. at Large, 531, Chapter 196, March 2, 1903; 32 Stats. at Large, 943, Chapter 976, and April 14, 1910, 36 Stats. at Large, 298, Chapter 160 (8 Fed. Stats. Ann., p. 1189, etc.; U. S. Comp. Stats., secs. 8605-8623).
The complaint alleges that at said time the Chicago, Milwaukee & St. Paul Railway Company was under federal control, and that the defendant, Payne, was at the time of bringing the action Director-General of Railroads and the designated
The defendant in his answer admits the operation of the railroad in question by the defendant, and admits the duty of
The reply denies the affirmative allegations in the answer.
At the close of all the testimony a motion was made by the defendant for a directed verdict, which was denied. The plaintiff had judgment and verdict for $18,000. The defendant has appealed from the judgment and from an order denying a new trial.
The defendant assigns eleven errors, but in argument groups them under four specific heads, one only of which we deem it necessary to consider as decisive of this case, viz.: Is the evidence sufficient to support the verdict? In that respect the defendant contends that the particular in which the evidence is insufficient is that it does not show that the defective condition of the coupler was the proximate cause of plaintiff’s injury.
In this state, as well as in every state of the Union, and in all the United States courts, the plaintiff, in a personal injury case, must prove by competent evidence, not only that the defendant was guilty of negligence, but that such neg
In the earlier case of Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515, the doctrine was also announced in the following language: “Thus, in an ordinary case of negligence, like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff’s injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to establish plaintiff’s case. If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the woi’d ‘tend’ does not contemplate conjecture.”
Negligence in certain cases may be presumed, and in the case of statutory negligence the violation of the statute
The doctrine is held in some cases that a breach of statutory duty is evidence, not only of negligence, but also that such negligence caused the injury complained of. But this rule has been abandoned, and the modern rule is that, while the violation of a statute is negligence, yet to entitle the plaintiff seeking to recover damages for an injury sustained, he must show a causal connection between the injury received and a disregard of the statutory prohibition or mandate and that the injury was the proximate result. (22 R. C. L., sec. 91, p. 206.)
The evidence introduced in this ease on behalf of the plain- tiff, in so far as it relates to the accident, is as follows: The train upon which the decedent was serving as a brakeman reached Roundup at 11:30 on the day of the accident; it was a local freight train, and it stopped- at Roundup to cut out some cars and put some in; the caboose, with a number of cars attached, was left on the main-line track, and thereafter Kern, as head brakeman, and other employees, were engaged in switching operations; the.train was proceeding in a westerly direction; immediately prior to the injury the caboose, with the cars attached, was upon the main track, the westerly end of the standing cars being approximately two car-lengths from the switch leading on to what is known as the Y track;
At some time during the switching operations at Roundup, other cars had been coupled on to the car having the defective coupler, and Kern was the man who was “pulling the pin” in the various cuts that were made. In that connection, witness Moss testified: “At the time this car on which I made the effort to .open the coupler, as I have told the jury, was placed on the main line where it was standing at the time I made the effort, it was then in contact with other cars to the west of it; it was when it was first placed there. Nobody pulled the pin in that coupler on the ear from the west at that time; somebody pulled the pin on the car that came in contact with it on the west; that was Kern.”
On cross-examination Moss testified: “I wouldn’t say I took care of the uncoupling when we took off our caboose or not, but I believe I did. If I did take care of that operation I did it by taking hold of the pin lifter and pulling on it, on the caboose—in front of the caboose and back of the car west of it. As to whether when I cut a train I usually pull the pins on the cut that is going away from the standing part and leaving that open, I will say it is owing to which side of the train you are standing on. The cars are so constructed that there is a lever for the purpose of lifting the pin which fastens the knuckles or knuckle to the car, one on one side and one on the other. * * * As to whether you understood me to say that Mr. Kern had opened the knuckle on some other car, and whether I referred to some car other than the car that injured him, * * * I will say a string of ears had been kicked upon the main line; this last batch of cars that came down the main line he would have to pull the pin on
As the moving car approached the standing car and when about two car-lengths from it, the engineer observed Kern go in front of the moving car, and shortly thereafter he observed Kern rolling out from in front of the moving car, and upon going to him found his foot had been crushed, and indications being that it had been caught in the frog of the switch. The train at the time was moving at the rate of two or three miles per hour. Immediately after Kern was injured the coupler on the moving car was observed to be open. It is undisputed that in order that two cars may couple when brought in con
There was no evidence introduced as to whether or not the coupler on the moving ear was open or closed prior to the injury, nor was there any evidence introduced that Kern had previously uncoupled from this particular car or that he operated the coupler alleged to be defective. The evidence of the defendant was to the effect that the knuckle on the standing car was not defective, but operated perfectly immediately after the injury. From the above evidence it could only be assumed that Kern knew the coupler was defective on the standing car from the fact that he “pulled the pin” in the switching operations that day; yet it would further have to be presumed that he pulled the pin oh this particular car, in order to impute knowledge of its defective condition to him; yet there was no necessity for him to go between the cars, unless the coupler on the moving car was closed, and that fact also would have to be presumed, as there is no evidence, direct or indirect, upon that point.
To sustain plaintiff’s position, therefore, it must be inferred that the coupler on the moving car was closed, and then upon that inference it must be inferred that he went in between the cars to open the closed coupler, both of which inferences must be preceded by the presumption that he knew the coupler on the standing car was defective and would not operate. One presumption cannot be based upon another presumption. (16 Cyc. 1050; Looney v. Railway Co., 200 U. S. 480, 50 L. Ed. 564-569, 26 Sup. Ct. Rep. 303 [see, also, Rose’s U. S. Notes].) The inference cannot be drawn from a presumption, but must be founded upon some fact legally established. (5 A. L. R. 1340.)
The proof of the plaintiff shows only that the coupler was defective, that during the switching operations that day Kern “pulled the pin” in the ears, and that he was injured. From these facts everything else to establish plaintiff’s case must be inferred. We therefore conclude that the evidence is wholly insufficient to establish one element of plaintiff’s case, viz.,
The uncontradicted evidence on behalf of the defendant shows that there was a rule of the defendant company which provides: “Employees must not remove any of the appliances on engines or cars that will endanger the safety of themselves and others, and are warned not to stand on top of high cars while passing under bridges or through tunnels, not to get on the end of an engine or on a car as it approaches them, go between moving cars to couple, uncouple, open, close or arrange knuckles of couplers or to work on side of cars or trains where there are buildings, sheds, cattle chutes or other projections, or follow dangerous practices; kicking or holding drawbar in position to couple with other car or cars approaching is prohibited.” The deceased was familiar with this rule, and his duty under it was to have stopped the train before going in to open the coupler on the car, or, as the witness Moss testified: “By giving the engineer a stop sign and step around to the other side of the car, open the pin lifter lever, and step across from the opposite side of the track.” Had the decedent done so, he would not have been injured.
We can see no distinction in principle in this case from the case of Great Northern Ry. Co. v. Wiles, supra. In that case the deceased was a rear brakeman upon a freight train, and was killed when a passenger train ran into the rear end of the freight train, which had become parted. It was his duty, under the rules of the company, to protect the rear of his train by going back and giving warning to the approaching passenger, which he knew was behind him. Instead of going back and discharging his duty, he remained in the caboose and was killed. The negligence relied upon was the pulling of the drawbar which caused the freight train to stop. In its opinion the court says: “There is ho justification for a comparison of negligences or the apportioning of their effect. The pulling out of the drawbar produced a condition which demanded an instant performance of duty by Wiles, a duty not only to himself but to others. The rules of the company
In Francis v. Kansas City etc. Ry. Co., 110 Mo. 387, 19 S. W. 935, it is said: “It should be most unreasonable and unjust, after imposing upon the master the duty of promulgating a rule for securing the safety of his servant, to permit the servant to recover from the master damages for injuries which the observance of the rule would have prevented. As the master is bound, at his peril to make the rules the servant should be equally bound at his peril to obey them. In such case the disaster is brought upon the servant by his own voluntary act, and he, and not the master who has discharged his duty, should bear the consequences. So it has been uniformly ruled.’’
If it were assumed, in this case, that the decedent knew of the defective knuckle, and knew that the knuckle on the moving car was closed, we then have a situation where the deceased, knowing all of the circumstances, and with no necessity requiring him so to do, and with ample time and space in which to act, willfully and deliberately violates a rule of the company governing his conduct, and by his own carelessness and negligence brings about his own injury.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order are reversed and the cause is remanded to the district court of Custer county, with directions to dismiss the complaint.
Reversed.