97 P. 1033 | Mont. | 1908
delivered the opinion of the court.
On the night of October 14, 1906, plaintiff was operating an electric motor attached to a train of ten cars in the smelter of
As a result of the trial the jury returned the following special and general verdicts:
“ (1) Did A. T. Elliott, defendant’s general smelter foreman, before plaintiff’s injury, instruct plaintiff that he was never to run the blast furnace motors after that time? A. Yes.
‘ ‘ (2) Did F. "W. Snow, the assistant superintendent, before the plaintiff’s injury, order and instruct the plaintiff that he was thereafter to keep off the blast furnace motors? A. Yes.
“ (3) Did Mr. Henry Seidler on or before the fourteenth day of August, 1906, instruct the plaintiff that the general smelter foreman, Elliott, had issued orders requiring the plaintiff to keep off of the blast furnace motors thereafter? A. Yes.
“ (4) Did plaintiff know before he started upon the trip upon which he was injured that the train No. 1 had entered the tunnel under the coke bins ? A. Yes.
“(5) Could plaintiff have seen train No. 1 before coming in collision therewith, in time to avoid a collision, if he had looked for the same? A. Yes.
“ (6) Were the lights in and about the vicinity of the tunnel at the time of the injury complained of insufficient to enable the plaintiff to see that train No. 1 was in the tunnel at the time plaintiff entered the tunnel? A. No.
“We, the jury in the above-entitled action, find for the defendant.”
Judgment for the defendant was entered by the court, and, from such judgment and an order .denying a new trial, the plaintiff has appealed.
It is the contention of the appellant that the first three special questions submitted were not within the issues. With this we agree, for the reasons hereafter to be pointed out. But the case was tried upon the theory that these questions were material, and we cannot see where plaintiff was prejudiced by the submission of the same to the jury. Plaintiff had the privilege of asking the court to also submit to the jury the question whether Krejei ordered him to run the motor. If these matters were material, it would have been proper, and perhaps advisable, to submit this special question also.
We cannot agree that there was any error in submitting interrogatories 4, 5 and 6 to the jury. Indeed, we think they were properly submitted, as taking the opinion of the jury upon the only issue in the case in the light of plaintiff’s own testimony.
Again, it is urged that the evidence is insufficient to justify the verdict, in that “it conclusively shows that the plaintiff was of immature years, and lacked the experience, judgment and capacity to run the motor.” We have carefully studied the testimony, and cannot agree with this. Our opinion is that the
But the appellant contends “the evidence conclusively shows that running a motor was outside of plaintiff’s regular duties, and that defendant neglected to give him any instructions, caution or warning.” This assignment of error relates, of course, to the general verdict. There is some testimony in the case to the effect that running a motor, when occasion required, was not outside of plaintiff’s regular duties as car-chaser and wheeler. "We cannot undertake to say that a negative finding on that question is not supported by substantial evidence. But what caution- or warning did "the plaintiff require? This question was fully considered in Forquer v. Slater Brick Co., ante, p. 426, 97 Pac. 843 (just decided). What is there said in regard to pleading fully applies to the case at bar, but we shall pass it, as counsel seem not to rely upon it. No warnings in regard to the motor were required by this plaintiff, for two reasons: (1) He knew all about the machine; and (2) he was not injured by reason of any patent or latent defect in the motor. The reason for warning a servant is either to impart to him knowledge that he does not possess, or to impress upon him the necessity of being careful and bearing in mind the danger. Regardless of whether Krejci instructed plaintiff to operate the motor on the night in question, the orders he received from Messrs. Elliott, Snow and Seidler were ample warning to him, not only of the danger of “reckless” running, but also any dangers connected with the machine itself. As a matter of fact, as we read the testimony, the jury would have been well justified in concluding that the plaintiff knew all about these motors and the method of operating them. Of course, it was not negligence per se to change this young man’s occupation from that of wheeler or car-chaser to that of motorman. The allegation of the complaint that such change was made must be supplemented with testimony showing a necessity for additional instructions relating to the new employment.
Again it is said that “the evidence conclusively shows negligence on the part of the defendant in failing to make rules for the running of trains so as to avoid collisions.” It is not suggested what rules should have been promulgated. On the other hand, there is testimony that no rules were necessary or desirable, because all the employees who had worked in the smelter any length of time understood how the trains were run, and these employees were of sufficient number to “keep track” of the trains. In the absence of testimony or suggestion on the subject we are unable to conceive what rule or regulation would have served to prevent this accident in the manner of its occurrence, as narrated by the plaintiff. The jury found that he knew the other train was in the tunnel. It seems that at one time a system of electric bells was in use at the smelter, but it appears from the testimony of the superintendent of the smelter that this system of bells had no connection with the movements of the trains, and was not designed to regulate them in any way- — that it served an entirely different purpose, and had been discontinued. Indeed, as the plaintiff tells his story, the absence of rules had nothing to do with the accident.
In the case of Wagner v. City of Portland, 40 Or. 389, 67 Pac. 300, the supreme court of Oregon said: “The question whether the defendant was at fault in omitting to adopt suitable rules is not one for the jury, unless there is something in the testimony from which the inference may be drawn that it was practicable to have provided against the occurrence of the accident complained of by such a rule. * * * No such proof is to be found in the record, and hence a case has not been made in this particular upon which to put the question of negligence of the defendant in omitting the adoption and promulgation of
The court gave to the jury instructions numbered 6, 9 and 20, as follows:
“ (6) You are instructed that a minor, or person under twenty-one years of age, cannot be expected to set up his opinion against the judgment and experience of those maturer and older to whom he is given in charge, and that it would be his duty to obey the orders of those older than he and in authority over him. Therefore, if you are satisfied from the evidence in this ease that the defendant’s foreman, Milo Krejci, ordered the plaintiff to take and run the motor on the night in question, you are instructed that it was the duty of the plaintiff to obey such order, unless plaintiff, as hereinafter referred to, had been forbidden by the superior officers to run said motor, or unless the dangers, if any, were so obvious that a prudent person of plaintiff’s age, experience and capacity, would know and appreciate the same.”
“(9) You are instructed that the defendant’s duty to exercise reasonable or ordinary care in providing and maintaining a safe place where plaintiff should do his work would not be excused simply because plaintiff may have started to run the motor on the night in question without an express order to do so by some one in authority. The defendant would be responsible for failure on its part to provide and maintain a safe place in running said motor and train by the plaintiff, unless at the time of his injuries he was doing so without the knowledge and consent of the defendant, or its foreman in charge, or un
“ (20) You are instructed that if, before the day of the accident complained of by the plaintiff, F. W. Snow, assistant superintendent of the reduction works of the defendant, or A. T. Elliott, the superintendent of the smelting department of defendant, gave the plaintiff orders never to go upon any of the blast furnace motors or attempt to run them or either of them, or that Henry Seidler, the acting assistant foreman of the smelter, gave plaintiff such orders as coming from A. T. Elliott, superintendent aforesaid, you should find for the defendant, even though you may believe the foreman, Krejci, ordered the plaintiff on the night he was injured to run the motor. It was in that event the duty of the plaintiff to have given said foreman, Krejci, information of such prohibitory orders if said Krejci ordered him to take charge of said train, and failure to do so on the part of the plaintiff and going upon said motor in disobedience of such orders, if he did so, would make him a trespasser. ’ ’
So far as these instructions involve the idea that plaintiff could not recover, if he had been instructed not to run a motor by the general officers, even though Krejci ordered him to run one on the night in question, they are erroneous. Both Krejci and Seidler testified that, if the former ordered plaintiff onto the motor, it would be his duty to obey; so that, whatever the general rule of law may be where a servant is confronted with conflicting orders, it seems clear that in this case the court should not have advised the jury that plaintiff’s duty was to obey Elliott, Snow and Seidler.
The trial court also gave the following instruction to the jury:
“(12) The plaintiff alleges in his complaint, among other things, that the defendant was guilty of negligence and want of ordinary or reasonable care in putting the plaintiff in a motor cab on said night that was made of inferior material and poorly built, and which had been badly smashed and damaged before the accident complained of, so that it afforded no protection
Exception is taken to that part of the instruction directing the jury to disregard the evidence for all purposes. This exception is well taken. Plaintiff’s proposed instruction No. 2 should have been given. The court should have withdrawn from the consideration of the jury the allegation that the defective cab was, independently, a proximate cause of the accident. As shown by plaintiff’s testimony, no defect in the cab contributed to the cause of the injury. But the jury had the right to take into consideration all the attending facts and circumstances, including the manner of construction of the cab, the defects in the same, if any, in determining how the accident occurred and the responsibility therefor. (Forquer v. Slater Brick Co., supra.) We think, however, that the jury must have understood from other instructions that they were to do this; otherwise, they could not have answered interrogatories 5 and 6.
Instruction No. 15 is also objected to. It reads thus: “(15) The law requires the plaintiff to use his natural faculties. Whatever he might have seen or heard or discovered, exercising reasonable or ordinary care, he is supposed to have known. If he had an opportunity to ascertain whether train No. 1 was at the lime rock bins, and that, if he should run his train upon that track, he would come in collision with said train No. 1, his duty would not permit him to blindly proceed with his
The plaintiff requested the court to give to the jury this instruction: “No. 3. Even if you should find from the evidence that the defendant’s foreman, Milo Krejci, did not in the first instance order or direct the plaintiff to take and run the motor, and even though it should appear to your satisfaction that the plaintiff 'took said motor voluntarily and without being directed to do so, yet if you should further find from the evidence that, before starting on his last trip, the defendant’s said foreman knew that the plaintiff was about to take said trip as motorman, and that he consented to plaintiff’s doing so, then the defendant’s responsibility for any negligence in keeping the place safe and providing adequate lights would be the same as though its said foreman had first directed and ordered the plaintiff to take said motor.” We can dispose of the case in discussion of this request.
Turning back to the complaint, we find that plaintiff has brought five charges against the defendant, viz: (1) Requiring him to perform a hazardous act outside the line of his employment, knowing that he was of immature years and lacked the experience and judgment necessary for the performance thereof; (2) failure to provide adequate lights; (3) supplying a defective cab; (4) failure to make rules; and (5) failure to instruct
It will be seen from the foregoing extract that the plaintiff attributed the accident solely to a failure on his part to see the train ahead of him on account of lack of light. It is true he claims that he did not thoroughly understand the work of
Believing, as we do, that' the plaintiff ought not to have had a verdict upon the case made, and that substantial justice has been done between the parties, we conclude that the order and judgment of the district court should be affirmed, notwithstanding those technical errors heretofore noticed.
Affirmed.