30 Mont. 323 | Mont. | 1904
prepared the following opinion for the court:
Appeal from a judgment of nonsuit and from an order denying plaintiff’s motion for a new trial.
The plaintiff brought this action to recover damages for injuries sustained by him in defendant’s railway yards in. Great Ealls, caused, as he alleges, by defendant’s negligence in constructing and maintaining a switch stand so near its x’ailway track that plaintiff, in the performance of duty, was struck thereby as he attempted to mount a moving engine, and, falling thex’eundex’, was xnxn over, resulting in the loss of his left leg a few inches above the knee.
The testimony discloses that the steps on an engine similar to- the one in use at the time of the accident project over the track a distance of thirty inches; and the space between the engine and the switch stand, the target being at a right angle with the track, when the engine is backing in on track No. 2,
The' defendant pleaded that the plaintiff was guilty of contributory negligence, and that he had assumed the risk of the employment. In order to- determine whether the plaintiff was. guilty of such contributory negligence as will defeat his action it becomes necessary to look to the situation of the defendant 'and plaintiff — the master and servant — at the time of the aeci
One ground urged by defendant’s counsel in his motion for a nonsuit is: “Because it appears from the plaintiff’s proof that the duties which he was seeking to perform at the time of the accident complained of could have been performed safely
There can be no question a-s to the correctness, of the legal proposition upon which counsel relies, but is it applicable to the facts- in this case ? That the duties plaintiff was. seeking to-perform could have been performed safely and without injury to- him is conceded, but- did he voluntarily or unnecessarily place himself in a position of known peril ? Did he know, or ought he to have known, that the way he adopted was unsafe ? Did he know, or ought he to have known, that the switch stand was but forty inches from the track ? The testimony discloses that the switch stands at all other places upon defendant’s system were about six feet from the track, and plaintiff had frequently ridden-past them without injury on the sides of cars and engines.
Mr. Justice De Witt, in Prosser v. Montana Central Railway Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814, states the tenor of the authorities to be “that, if the question of negligence or contributory negligence is a, fairly disputed question of fact, it must be resolved by the jury, but that, if the evidence is perfectly clear, the matter is for the court; and by ‘perfectly clear,’ the authorities say, is meant not perfectly dear in the view of the particular court or persons composing the court which is reviewing the matter, but rather in the judgment of reasonable men of sound minds. That is., if different conclusions, might be drawn by different men of fair, sound minds, then the matter must go to the jury; but, if only one conclusion can be reached by men of fair, sound minds, the determination is for the court.”
As, to, whether the plaintiff knew, or reasonably should have known, that he was, adopting’ a dangerous course in mounting the engine when and where he did is a question upon which men of fair, sound minds may differ. Plaintiff was entitled to rely upon the presumption that the defendant had properly constructed its railway line and appliances. However, he was somewhat familiar with the Great Palls yards, as the facts herein recited show, and “what a man in law. ought, by the exercise of reasonable diligence, to, know, he does know” (Bryce v. C., M. & St. P. Ry. Co., 103 Iowa, 665, 72 N. W. 780); but to what extent was he familiar with the switch stand in question? Ought he, by the exercise of reasonable diligence, to have known its location and proximity to, the track? He testified that he did not know the distance the seven switch stands were from the track; that he never threw switch stand No. 2 before the afternoon upon which he. Was hurt, and then threw it but once.
Throughout this inquiry it must be borne in mind that on a motion for a nonsuit every fact will be deemed proved which the evidence tends to prove. Such has always been the rule of practice in this court. (Herbert v. King, 1 Mont. 475; Gans v. Woolfolk, 2 Mont. 463; McKay v. Montana Union Ry. Co., 13 Mont. 15, 31 Pac. 999; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182; Soyer v. Great Falls Water Co., 15 Mont. 1, 37 Pac. 838; Powers v. Klenzie, 15 Mont. 177, 38 Pac. 833; Jensen v. Barbour, 15 Mont. 582, 39 Pac. 609; Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969; Holter Lumber Co. v. Fireman's Fund Ins. Co., 18 Mont. 282, 45 Pac. 207; State ex rel. Harmon v. Conrow, 19 Mont. 104, 35 Pac. 240; Morse v. Granite County Commissioners, 19 Mont. 450, 47 Pac. 639; Cameron v. Kenyon-Connell Commercial Co., 22 Mont. 312, 56 Pac.
Counsel for defendant argues that plaintiff, in going into- and out of this- portion of the Great Palls yards during a period of three months, must have noticed the proximity of these switch stands to the lead track, and especially must have done so at the two times he threw them immediately prior to- the accident. This is not conclusive. As the court remarked in the case of Southern Kan. Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938: “In Rouse v. Ledbetter, 56 Kan. 348, 43 Pac. 249, an injury to a switchman resulted from a defective structure in the yard, and one that he might have seen by the reasonable use of his eyesight. It was held, however, that the fact that he was working in that part of the yard, and might have seen it if his attention had been called to it) was not conclusive evidence of contributory negligence. It was said: ‘The faculty of close observation of objects is largely a gift. S'ome persons may walk once along a street, and be able, without any special effort, to describe every prominent object upon and every projection into the street, while others might go up and down the same street for a year, who could not describe such objects and projections. * * * Many dangers necessarily attend the performance of the duties of a yard switchman, but the master is not allowed to increase the hazards of his servant by placing pitfalls, obstructions, traps or inclines in his path, whereby he may lose his footing, and be mangled or killed.’ ” (Dorsey v. Phillips, etc. Construction Co., 42 Wis. 583.)
A railroad company is not an insurer of the safety of its employes. All the law demands it to do is to “exercise all reasonable care to provide and maintain safe, sound and suitable machinery, roadway, structures and instrumentalities.” Whether it did so in this instance we axe unable to say. The defendant’s-
As to the question of assumed risk. Of course, if plaintiff assumed the risk, the question of his contributory negligence is out of the way. (Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871.) The occupation of a freight brakeman is a perilous one at best, and those who engage in it must be held to have voluntarily gone into it anticipating its dangers, but only the dangers which one may ordinarily encounter in the nature of the calling. The authorities hold that the plaintiff is to' be held
Whether the plaintiff assumed the risk in this case necessarily depends upon his knowledge or means of knowledge as to the location of switch stand No. 2; that is, whether he knew or should have known its close proximity to the track. Under the circumstances of this ease this question, therefore, should be left to the jury. “No cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that m> recovery could be had upon any view which could reasonably be drawn from, the facts which the evidence tends to establish.” (Cain v. Gold Mtn. Mg. Co., 27 Mont. 527, 71 Pac. 1004; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448; Ball v. Gussenhoven, supra; Nord v. B. & M. Con. C. & S. M. Co., supra.)
We think the complaint states a cause of action.
The judgment and order should be reversed, and the cause remanded for a new trial.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause is remanded for a new trial.