McManus v. Butte Electric Railway Co.

219 P. 241 | Mont. | 1923

MR. JUSTICE COOPER

delivered the opinion of the court.

Shorn of legal verbiage, the complaint, in two counts, alleges: First, that the defendant Crossman, as motorman in charge of a street-car of the defendant company, carelessly, negligently and wrongfully ran his car on Front Street between Montana Street and Utah Avenue in the city of Butte at a rate of speed prohibited by Ordinance No. 434, to-wit, in excess of fifteen miles per hour, and as a proximate result of so running the ear, he ran over and killed the plaintiff’s minor son, John McManus, a boy of ten years of age; second, that Crossman, at the same time, carelessly, negligently and wrongfully ran his car over and across Front Street where it is crossed by Colorado Street, without giving the alarm required by the ordinance mentioned, and as a proximate result thereof ran over and killed John McManus, Jr.

The defendants interposed a general and special demurrer to each of the two counts, urging that from the recitals therein only legal conclusions could be drawn, and that in the absence of a statement of the facts, circumstances and details tending to show that the violation of the ordinance was a proximate cause of the death, it did not state a cause of action.

After the district court had overruled the demurrer, the defendants filed their joint answer denying the averments of both counts, and pleading affirmative defenses. After alleging that the car was of suitable type, pattern, and design, and all its parts and appliances without defect and in good operating condition, they stated that as it traveled easterly on Front Street to the point where Colorado Street crosses Front Street, it met a large automobile truck which was then coming along the north side of Front Street in a westerly direction; that defendant Crossman, the motorman, kept a vigilant watch of the truck as he traveled easterly along Front Street, and when the truck was a safe distance from the street-car, the boy was upon the rear end of the truck, but not then within his vision, and he could not by the exercise of reasonable or any other degree of care discover his presence or that he was then upon the truck or upon the street; that at approximately the time the front end of the truck was opposite the front end of the street-car, the boy descended from the rear end of the truck, and, taking a few steps in a generally southerly direction, fell under the street-car in such a fashion that the rear trucks of the street-car passed over the boy and killed him; that the accident was due to the careless and negligent act of John McManus, Jr., in jumping off of the rear end of the truck and running into the side of the street-ear at a time when the accident was utterly unavoidable, and was due solely to the careless and negligent acts of the boy; and that, after the motorman discovered him, he exercised every agency, within his control to avert the accident.

To the answer plaintiff filed a reply, and the cause was tried in the court below with the aid of a jury. A verdict in the sum of $3,500 was returned and judgment entered thereon. Hence this appeal.

At the beginning of the trial, the defendants objected to the reception of any evidence in the case upon the ground that neither the bare allegation in the first count that the car was running at a speed prohibited by Ordinance No. 434 of the city of Butte, nor the allegation in the second count that the motorman failed to give the signals required by the ordinance referred to, proximately causing the injury, stated a case for the jury; and that without averment, in each count, of facts, circumstances and details of the happening, which of themselves constituted negligence, no evidence was admissible in support of plaintiff’s case. This objection was likewise overruled. Appellant’s counsel insist that the rulings of the court in both instances were erroneous, and in their brief say: “There must be a statement which shows in some fashion that certain acts and omissions of one party proximately resulted in injury and damage to another party. It is not enough to say that one thing happened and that another thing happened, and then draw the legal' conclusion that one flowed from the other.”

What does the language of the complaint import? Plainly, that proceeding directly from defendants’ negligence in operating the car at a speed in excess of eight miles per hour, was the running down and injury to John McManus, Jr. In Stein v. United Railroads, 159 Cal. 368, 113 Pac. 663, it was held that an allegation that the defendant “operated, ran and conducted one of its cars upon and along said Turk Street * # * in such a careless, negligent, reckless, wrongful and unlawful manner that the said ear, when it came to the crossing by the street known as Buchanan Street and the said Turk Street, while going in an easterly direction, ran into and upon the plaintiff and severely injured him” was sufficient. The court quoted from a former decision the following: “It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury.” The opinion then proceeds: “It may be said fur- ther that even if it were error (and it was not), to overrule the demurrer for uncertainty, it was error without prejudice unless the demurring party was misled by the defects in the pleading, and the case was not fairly tried on the merits. Here it appears that the issues were all fully, fairly, and understandingly tried. (Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 Pac. 936; Irrgan v. Ott, 9 Cal. App. 440, 99 Pac. 528.) ” See, also, Davis v. Freisheimer, ante, p. 322, 219 Pac. 236, where this court announces the same principle.

Section 469 of 2 Nellis on Street Bailways, second edition, is as follows: “As a general rule it is sufficient that the complaint, petition, or declaration in an action against a street railway company, for personal injuries sustained through the negligence of the defendant, alleges generally and substantially, that the injury was occasioned by the negligence of the defendant, or that the acts alleged of the defendant were the sole and proximate cause of the injury. Degrees of negligence are matters of proof and not of averment. The circumstances constituting the negligence are also matters of proof and not of averment. It is sufficient as against a demurrer for want of facts to characterize an act as having been negligently and carelessly done, and under such an allegation the specific facts constituting the negligence may be given in evidence.”

This court, in Allen v. Bear Greek Coal Co., 43 Mont., at page 278, 115 Pac., at page 676, reviewing our Code provisions pertaining to pleadings, says: “A complaint must contain a statement of facts constituting the cause of action, in ordinary and concise language. (Sec. 6532, Bev. Codes 1907.) The rule applicable to determine its effect, however, is that ‘its allegations must be liberally construed, with a view to substantial justice between the parties.’ (Sec. 6566.) * * # Whatever is necessarily implied by a statement directly made, or is reasonably to be inferred therefrom, is to be taken as directly averred. (County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81; Phillips on Code Pleading, see. 352; Baylies on Code Pleading, 49; 31 Cyc. 80.) * * * It is elementary that the averments of fact must be sufficiently specific to show the causal connection between the omission of duty by the defendant and the injury complained of; that is the gist of the action. (Fearon v. Mullins, 35 Mont. 232, 88 Pac. 794; Thompson on Negligence, sec. 7467.) But a pleading comes within the rule when from the facts stated the causal connection must necessarily be inferred.”

Turning to the evidence in the case, the defendant Crossman admitted that he was running the car sixteen or seventeen miles an hour when the boy was struck, and that the front end of the ear had passed the line of Colorado Street. One witness for plaintiff, a motorman who had operated street-cars for the defendant company for five years, testified that the car was traveling twenty-five miles an hour when it struck the boy. Several others of plaintiff’s witnesses stated that they did not hear the bell ring. The motorman did not testify with reference to ringing the bell at all. At least two witnesses for the plaintiff located the body of John McManus, Jr., under the rear trucks of the ear after it came to a stop immediately under an arc-light twenty-five or thirty feet east of the west line of Colorado Street where it crosses Front Street. This furnished enough evidence upon which the jury could base a finding that the boy was struck at the intersection of the two streets; that the speed of the ear when it eollidod with the boy was more than eight miles per hour, and that the alarm bell was not rung as the car approached the crossing. It also authorized them to infer that, but for its excessive speed, the motorman might have been able to bring the ear to a stop before striking the boy, or, had the bell been rung in approaching Colorado Street, the boy might have had time to regain the use of his feet, and to get off of the track and beyond the reach of the car. Propelling a railroad car or a street-car at a rate of speed prohibited by a city ordinance is negligence as a matter of law. (Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226; 21 Cyc. 508; Elliott on Railroads, 3d ed., sec. 842; Cytron v. Transit Co., 205 Mo. 692, 104 S. W. 109; Dyson v. Southern Ry. Co., 83 S. C. 354, 65 S. E. 344.)

In 1 Comyn’s Digest, Action upon Statute, F, it is set down: “In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to law.’’

The testimony, showing, as it does, beyond question that the ear was being propelled along Front Street and over the crossing of Colorado Street at more than eight miles per hour, and that no gong was sounded, gives ample room for the inference that, had the mandates of the ordinance been obeyed, the deceased might have escaped the injury which befell him.

“"When a human being is injured at a railroad crossing there is a reasonable presumption that the warning conveyed by the sound of the bell or whistle would have been beneficial to him; and, therefore, in such a case, it may be presumed that his injury was caused by the omission of such signals, if they were omitted.” (Shearman & Redfield on Negligence, sec. 469.)

Counsel in their brief admit that “If Ordinance No. 434 were in effect, and the company actually ran the car more than eight miles an hour, it was guilty of negligence per se.” Their contention that the ordinance had been repealed at the time of the accident must be regarded as without merit. In St. Louis etc. Ry. Co. v. Eggman, 161 Ill. 155, 43 N. E. 620, it is held that ordinances shown to have been passed prior to a certain day will be presumed to have been still in force upon that day, in the absence of evidence to the contrary. (See, also, Greenleaf on Evidence, 15th ed., sec. 41; 28 Cyc. 395; Neary v. Northern Pac. Ry. Co., supra.)

We have carefully considered all the other assigned errors, and find them without merit.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.