204 P. 485 | Mont. | 1921
delivered the opinion of the court.
This action was brought by William Lowney, guardian ad litem for Helen Lowney, a minor, against the Butte Electric Railway Company, a corporation, ■ and Wilber A. Hoar, to recover damages for personal injuries. Verdict was rendered in favor of defendant Hoar but against defendant Butte Electric Railway Company and judgment was entered in accordance with the verdicts. Defendant Butte Electric Railway Company made a motion for a new trial, which was overruled. It has appealed from the order overruling the motion and from the judgment. No appeal was taken by plaintiff from the judgment in favor of Hoar.
The facts as alleged in the complaint and as contended by plaintiff were substantially as follows: Helen Lowney, at the time in question, was a child approximately four years of age. Her mother, with her and .two other children, were passengers on one of the cars of the defendant railway company of which defendant Hoar was conductor. Upon reaching their destination, the mother assisted the other two children to alight from the car while the conductor put his arm around Helen to lift her from the car to the pavement, when he carelessly and negligently let her drop, the back of her head striking the iron rim of the car step, causing severe injuries.
The railway company can be held liable in this action only
It must also be borne in mind that where the principal is held liable under the rule of respondeat superior, he has the right of action against the servant for the damages he has sustained by reason of the servant’s negligence. In this ease, if the judgment against the railway company is to be sustained, while the judgment in favor of Hoar remains as a final determination that he was not negligent, then the latter judgment constitutes a bar to any action by the railway company to recover its damages against Hoar. Thus, the principal is charged with the liability for the act of the servant but is denied the right to compel the servant to account for the damages due to his wrongful act. This in itself is a substantial reason why the railway company should not be held liable for the damages unless Hoar is also held responsible.
In opposition to appellant’s contention, respondent relies upon the decisions of this court found in the eases of Verlinda v. Stone & Webster Engineering Corp., 44 Mont. 223, 119 Pac. 573, and De Sandro v. Missoula L. & W. Co., 48 Mont. 226, 136 Pac. 711. It is true that in both opinions appear dicta supporting respondent’s theory of the case, but
As one of the vital issues in the ease was whether or not
Other assignments of error were made by appellant, but inasmuch as they are not necessary to the final determination of the ease, they will not be considered.
The order overruling the motion for new trial is reversed.
For the reasons herein stated, the judgment is reversed and the cause remanded to the district court, with directions to enter judgment in favor of defendant railway company.
Reversed with directions.
: Our attention has been called to the fact that regarding the judgment in favor of defendant Hoar, plaintiff made a motion for new trial in the district court, which motion is still pending. Under these circumstances, it yet may be possible for the ease to be retried and a decision rendered upon the merits, and for this reason it seems to us advisable to send the case back for a new trial. Such course was adopted in most of the cases upon which our decision of this case was based, is consistent with our opinion already rendered and is in accordance with justice as between the parties.
It is therefore our opinion that the order heretofore entered in said matter should be modified by striking out that portion thereof which directs the entry of judgment in favor of defendant railway company, and in lieu thereof it 'be ordered that the cause be sent back to the district court for a new trial.