153 P. 1019 | Mont. | 1915
delivered the opinion of the court.
In November, 1912, Albert Page was employed by the Chicago, Milwaukee & St. Paul Railway Company as 'a car repairer in the shops at Harlowtown. He was killed by an incoming eastbound freight train, and this action by the administrator of his estate was brought to recover damages. The railway company, Homer Ganon, the engineer in charge of the locomotive at the time of the accident, and Hugh Spencer, superintendent, were joined as defendants. Spencer was dismissed on motion
The main line of the railway extends substantially east and west, south of the town of Harlowtown and immediately south of the passenger depot. South of the main line are six sidetracks, and south of these tracks, and southeast of the depot, 600 or 700 feet distant, are the roundhouse and shops. Company employees who live in the town reach their places of employment at the shops by crossing the tracks from or near the depot. Page was killed early in the morning of November 15, 1912, while he was attempting to cross the tracks from a point west of the depot to his place of work. At the conclusion of plaintiff’s case in chief the defendants moved for a non-suit, which was denied as to the railway company and Ganon. In this ruling the trial court erred. The plaintiff had failed altogether to make out a prima facie case of actionable negligence. About all that can be said is, that he established that Page was run over and killed in a race with the train for the
We do not agree with respondent that the evidence warrants the conclusion that at the time Page met Ms death, he was upon a highway, road or railroad crossing within the meaning of those terms as employed in the statute above. But even assuming
Instruction No. 5, given by the court, must have confused,
By instructions 2 and 2y2 the subject of contributory negli
The criticism of the court’s outline of the case to the jury
Larsen, a witness for defendants, was subjected to cross-
Without objection from either party, the court instructed the jury: “If you find your verdict for the plaintiff, you cannot allow damages for grief or sorrow or for any other loss save and except the financial and pecuniary loss suffered by the widow and children on account of the death of Albert Page. In such case, you must confine your considerations to the amount that will compensate the wife and children for the pecuniary benefit which they would probably have received from Albert Page if the accident had not occurred.” This
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.