109 P. 979 | Mont. | 1910
delivered the opinion of the court.
This is an action to recover damages on account of personal injuries, alleged to have been sustained by plaintiff while a passenger on one of the street-cars of the defendant Butte Elec
The plaintiff testified, in substance: That as the car approached the intersection of Warren and East Galena streets, he arose from his seat near the front door and went to the door, which he found was fastened on the outside. The motorman unfastened it and let him out upon the platform. As he passed out, he said “Warren,” in an ordinary tone of voice. The car slowed down near the crossing, to a speed of about four or five miles per hour. Plaintiff stepped down one step, with his hand grasping the iron rail. The car did not stop at Warren street, but continued to run at the slow rate of speed for about 100’ feet, when suddenly it was violently jerked and started forward so swiftly that plaintiff lost Ms hold, fell to the ground and was injured. Other passengers testified that there was a violent jerk of the car.
At the close of plaintiff’s ease, the defendant Rundblad filed a motion to dismiss the action as to him, for the reason, among others that there was a fatal variance between the proof introduced by plaintiff and the allegations of his complaint. The defendant Butte Electric Railway Company moved for a non-suit for the same reasons.- Both motions were overruled. At the close of all the testimony, defendants moved the court to' peremptorily instruct the jury to return a verdict in their favor,
1. It is contended by counsel for the appellants that there is a misjoinder of parties defendant, for the reason that there is no joint liability of the master and the servant; that the liability of the master rests upon an entirely different basis from that of the servant, in that the liability of the latter is based directly upon his own negligent act and its effect upon the plaintiff, whereas the liability of the master results from the application of the doctrine of respondeat superior. The question is hardly an open one in this state. We have the modem reformed procedure, and it has been customary to pursue the practice adopted by the plaintiff. In Golden v. Northern Pacific Ry. Co., 39 Mont. 435, 104 Pac. 549, the matter was practically decided adversely to the appellants’ contention. Now that the point has been directly raised, we see no reason for changing our views. The supreme court of Washington has held to the same effect in Howe v. Northern Pacific Ry. Co., 30 Wash. 569, 70 Pac. 1100, 60 L. R. A. 949, as has likewise the supreme court of Minnesota in Mayberry v. Northern Pacific Ry. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A., n. s., 675, 10 Am. & Eng. Ann. Cas. 754, and note. (See, also, section 6486, Revised Codes.)
2. It is contended that the complaint does not state facts sufficient to constitute a cause of action, for the reasons: (1) That there is no allegation to the effect that the defendants had any knowledge or notice, either actual or constructive, that the plaintiff intended to get down on the steps of the front platform of the car and to alight from the same; and (2) that the complaint does not show the place where the plaintiff was in the act of getting out of and off from the car was a usual place for the defendant company to stop its cars so as to allow passengers to alight or go aboard. This specification of error well
3. In the view we have taken of other matters presented by the appeal, it becomes unnecessary to consider whether the court
4. It is contended that, aside from the’ other questions involved, the plaintiff failed to make out a ease sufficient to go to-the jury. We cannot agree with counsel in this. We think the jury was justified in concluding from plaintiff’s testimony that he arose from his seat as the car approached Warren street, went out on the platform, and mentioned the name of the street to the motorman. This is the customary manner of signifying-a desire that a car be stopped. The speed of the car was slackened and reduced to about four or five miles per hour, and he, under the impression that it was about to stop at the crossing, stepped down from the platform to the first step of the ear, preparatory to alighting. The car did not stop, but continued at a slow rate of speed for some distance beyond the crossing, when suddenly, while he was in the same position and unable to determine whether it would stop in the immediate vicinity, its speed was increased with a violent jerk, and he was thrown off and injured. We think he established a prima facie case of negligence.
5. But it is contended by the appellants “plaintiff did not make the slightest attempt to prove the cause of action stated-in the complaint, to-wit, a cause of action based upon his being-injured while he was getting off a ear which had stopped at Warren street and which was started and put in motion while-he was in the act of getting off.” This contention must be sustained. There was an entire failure to prove the. cause of action pleaded. The motion for a nonsuit should have been granted on that ground. Bespondent cites the case of Feagin v. Gulf, C. & S. F. Ry. Co., 45 Tex. Civ. App. 251, 100 S. W. 346, wherein the court said: “The gravaman of the charge upon which negligence was based was the sudden and violent jerking
of the train before plaintiff had time to reach her seat, and it was entirely immaterial upon the issue of the alleged negligence of the defendant whether the train was absolutely stationary at the time she boarded it, or, as testified by her, ‘was in motion, of movement.’ It would be just as negligent to suddenly and.
Another important question involved in the ease, as shown by the testimony, is whether plaintiff caused his own injury by negligently getting off a moving car—a question of fact for the jury—whereas, in the case as pleaded, he had a right to get off where and when he did, and would probably have been guilty of no negligence in so doing. It is true that the plaintiff was a passenger; but when he either alleges in his pleadings, or shows by his proof, that he alighted from a car while the same was in motion, he must also show his reason for so doing. In other words, he must show the proximate cause of his injury to have been some negligence on the part of the defendant. The mere fact that a passenger is injured while alighting from a car is not alone sufficient to charge a railway company with responsibility therefor. (See Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Holbrook v. Utica etc. R. R. Co., 12 N. Y. 236, 64 Am. Dec. 502.) As was said by the New York court of appeals, in the last case cited: “It is incorrect to say that the negligence of the carrier is to be presumed from the mere fact that an injury has been done to plaintiff. The presumption arises from the cause of the injury or from other circumstances attending it, and not from the injury itself.” The mere fact of an injury suffered by a passenger while on his journey, without any evidence connecting the carrier with its cause, is not sufficient to raise a presumption of negligence on the part of the carrier. (2 Shearman & Redfield on Negligence, 5th ed., sec. 516. See, also, Mitchell v. Southern Pac. R. R. Co., 87 Cal. 62, 25 Pac. 245, 11 L. R. A. 130; Pennsylvania R. Co. v. MacKinney, 124 Pa. 462, 10 Am. St. Rep. 601, 17 Atl. 14, 2
We conclude, therefore, that it was incumbent upon the plaintiff to prove some negligent act of the defendants which resulted in his injury, and that such negligent act must be the one, or one of those, set forth in the complaint. Also, that the cause of action proven is not set forth in the complaint in any of its essential particulars, and the cause of action pleaded is unproved in its general scope and meaning, resulting in a failure of proof. (See section 6587; Revised Codes; Forsell v. Pittsburgh & Mont. C. Co., 38 Mont. 403, 100 Pac. 218; Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 Pac. 416. See, also, Cody v. Duluth St. Ry. Co., 94 Minn. 74, 102 N. W. 201, 397.)
Respondent’s brief is prefaced by an objection to the consideration by this court of the order overruling appellants’ motion for a new trial. The objection is based upon the contention that the district court lost jurisdiction to pass upon the motion for a new trial because of the fact that the bill of exceptions was not served and filed within the time allowed by an order of the court. In view of what has been said by this court in Hill v. McKay, 36 Mont. 440, 93 Pac. 345, and State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, we are of opinion that the objection is not tenable.
The judgment and order appealed from are reversed, and the cause is remanded for a new trial.
Beversed and remanded.