100 P. 616 | Mont. | 1909
delivered the opinion of the court.
The complaint in this action, after alleging the corporate character of the Great Northern Railway Company and the Boston and Montana company, and the representative capacity of the plaintiff, reads as follows:
“ (4) That the said defendants William Borden, Daniel Eaton, J. H. Kane, and Charles B. Foster now are, and have at all the times hereinafter set out been, citizens of the state of Montana, and have resided in the city of Butte in said state, and at the time of the injury hereinafter described were servants of the said railway company, and had charge of the engine and caboose that ran over the deceased as hereinafter set out.
“ (5) That on or about the fifth day of February, A. D. 1908, the said defendants, acting jointly, and by their joint act of
“ (6) That at the said place, near the said Gambetta mine, a great many mines are operated, and approximately five hundred men, as a general rule, would, between the hours of 5 and 6 in the afternoon, at which time of the day the injury hereinafter described took place, use the said track as pedestrians for a distance of from two hundred to five hundred feet, or cross at a certain crossing about two hundred feet north of the point where the injury hereinafter described took place. That approximately for ten years previous to the said date the said number of men had, without objections from the said railway company, and by the said railway company’s license, and as a matter of necessity in going and coming to and from their work to mines surrounding the said track, used the said track as a footpath, and had been in the habit of crossing the said track at the-said place, and at different places, where the said injury took
“(7) That the said railway company knew that their track was used in the manner as aforesaid, or by the exercise of ordinary care would have known that it was so used, and the said mining company well knew, or by the exercise of ordinary care ought to have known, that the said exhaustion of steam made the said track dangerous as aforesaid, under the condition as hereinabove set out, and the defendants William Borden, Daniel Eaton, H. J. Kane, and Charles B. Foster also well knowing the premises; but nevertheless the said defendant railway company, by its said servants, at some time between the hours of 5 and 6 in the afternoon on the fifth day of February, or thereabouts, in the year 1908, without blowing the whistle at the said crossing, and without looking ahead of the engine or caboose, and in great disregard of human life, attached a certain caboose in front of an engine, and ran from the north over the said crossing of a certain public highway, at the rate of twenty miles an hour, and by their gross negligence and wanton disregard of human life did kill Timothy P. Lynch, the husband of this plaintiff, while the said Timothy P. Lynch was acting with due care on his part, by running over the said Timothy P. Lynch by having their said caboose attached in front of the said engine, while the said engine was running at the rate of twenty miles an hour.
“(8) That the said railway company and its servants, well knowing the negligence of the said mining company by exhausting its steam, and well knowing it would be impossible for a person to get off of its track while in the said steam, did not ring the bell and did not blow the whistle a distance of from fifty to eighty rods from the said crossing.
“(9) That the said railway company and its servants, as it came to the said place where the said view was obstructed, expected that some human being would be run over by the said defendant railway company; and its servants, by reason of the fact as aforesaid, to-wit, that miners were always on the track at said time and at said place, in utter disregard of human life,
“(10) That it was the duty of the said defendant railway company, and the duty of its said servants, to refrain from wantonly killing any human being on its track; and, in order to observe said duty, it would be necessary to ring the bell or blow the whistle, as hereinbefore set out, and also to blow its whistle or ring its bell in approaching said steam, and not to put a caboose in front of its engine, and thereby obstruct its own view, and not to go at an excessive rate of speed at a place where human beings were constantly known to be crossing or walking on the said track, and when human beings were expected to be. That it was the duty of the said mining company not to so construct and maintain its plant that dense volumes of steam would obstruct the view on the said track, and thereby prevent pedestrians, licensees, and employees and the said railway company and its servants from seeing each other and thereby prevent injury.
“ (11) That the place where the said Timothy P. Lynch was killed was in the suburbs of the city of Butte, known as Meaderville, in the county of Silver Bow, state of Montana. ’ ’
Both corporation defendants filed separately general demurrers to the complaint, which were sustained; and, the plaintiff refusing to plead over, judgment was entered against her, and she appeals therefrom.
On account of the peculiar phraseology of the pleading we have devoted much time to an examination and analysis of this complaint, and necessarily so because the contentions of the respective parties involve questions of law of so great importance to litigants and the legal profession that the court is not satisfied to apply any of them on a foundation of mere conjecture as to the meaning of the complaint. The contention of the appellant appears to be that she is entitled to rely on what has come to be known in the law as the doctrine of the “last clear chance,” applied to a ease where the defendant should have known of the deceased’s peril. Another contention is that
The briefs are voluminous and exhaustive, and show great research of authority; and a decent respect for the counsel engaged, and their efforts to assist the court in arriving at a proper conclusion, bearing in mind also the importance of the case to the plaintiff, impels us to state our views with greater elaboration of detail than would otherwise appear to be necessary or desirable under the circumstances. It is first necessary to ascertain, if possible, from the complaint where Lynch was killed, because the location of that place is determinative of the question whether the defendants owed him any duty in the place where he was, and, if so, what duty. If we can determine where Lynch was located at the time he was struck and killed, we may then apply the proper rule of law to the conduct of the two defendants under the circumstances, and inform the plaintiff whether or not she may recover damages from one or both of them, provided, of course, that she is able to prove the allegations of her complaint. If we cannot decide where Lynch was located, it would be idle to attempt to apply any rule of law at all.
Paragraph 6 appears to be an attempt to lay a foundation for the conclusion that Lynch was a licensee, and, viewed in that light, those allegations relating to the highway crossing become immaterial, because, if Lynch was on the highway crossing, he was in a place where he had a right to be. In view of the allegation that the steam was so dense that Lynch could not be
It will be observed that while the foregoing paragraphs do not expressly aver that Lynch was on the crossing, they do so by implication, and if the contention were made that the complaint states a cause of action for negligent killing at a public highway crossing, we should feel obliged to give it serious consideration. But no such contention is advanced, and it would be manifestly unjust to the plaintiff for this court to force upon her a cause of action to which she makes no claim, and which she could, probably, not prove. And the allegation that Lynch was a licensee seems to negative the idea that he was on the crossing. But our embarrassment is not thereby removed, because plaintiff’s counsel contend in their brief that it was the duty of the railway company’s servants to sound the whistle and ring the bell at the crossing. If Lynch was not on the crossing when struck, the neglect to give signals of warning at the crossing two hundred feet away was not a breach of any duty the company owed him in the place where he was. (Toomey v. Southern Pacific Ry. Co., 86 Cal. 374, 24 Pac. 1074,
We find no causal connection between any of the acts complained of and the result to Lynch, and are unable to determine what was the proximate cause of his death. Not only that, but if we may assume, which we may not, that Lynch was killed while in the steam, he appears to have voluntarily gone into a place of known danger, and the allegation that he acted with due care does not relieve the plaintiff, when she assumes to state all the surrounding facts and circumstances, from the necessity of also showing the exact place of the accident, to the end that the court may judge whether or not his negligence contributed to the result. On the face of the complaint the deceased appears to have been guilty of gross negligence, and whether or not such negligence on his part was a proximate cause of his death depends primarily upon the location of the place where he was at the time; and the accountability of the defendants also depends upon that, because, if they owed him any duty at
The judgment appealed from is affirmed.
Affirmed.