Molt v. Northern Pacific Railway Co.

120 P. 809 | Mont. | 1912

MR. JUSTICE SMITH

delivered the opinion of the court.

Plaintiff alleges in his complaint that on the 3d day of March, 1906, he was an employee of the defendant company in its roundhouse at Missoula; that he was directed to go into a certain pit under a locomotive engine and clean parts of the engine; that the pit was in a dangerous condition by reason of the negligence of the defendant in failing to properly light the same; that it allowed parts of the engine, tools, blocks, and pieces of iron to accumulate therein; that plaintiff stepped upon said accumulation of engine parts and other materials, without knowing that they were there, was violently thrown down, and thereby injured. A second cause of action is predicated upon an alleged negligent failure of the defendant to furnish its employees with sufficient torches and oil to light the engine pits, thus breaching its duty to furnish the plaintiff with a reasonably safe place in which to work. Among other defenses, those of contributory negligence and assumption of risk were interposed. Plaintiff had a verdict and judgment in the court below, and defendant appeals from the judgment and from an order denying its motion for a new trial.

1. "We shall first dispose of a contention advanced by the respondent. His counsel claim that this court cannot consider [1] the appeal from the order denying appellant’s motion for a new trial, for the reason that before the order was entered an appeal from the judgment had been perfected; and therefore the lower court was -without jurisdiction to take any further steps in the cause. The situation disclosed by the record well illustrates the infirmities in, and the anomalous situations too often resulting from, our cumbersome, intricate, and most unsatisfactory system of appellate procedure. Appeals from orders denying new trials should be abolished by the legislature at its next session, without delay. This court has repeatedly held that, as a general rule, an appeal, properly perfected, deprives the trial court of further jurisdiction in the cause. (See Glavin v. Lane, 29 Mont. 228, 74 Pac. 406; Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523.) But these, and analogous cases, must be read and construed in the light of the fact that the statute (sec. 6794, Rev. Codes) gives the district court power to grant a new trial, and section 7098, Revised Codes, gives the right of appeal from an order granting or refusing a new trial. Furthermore, section 7107, Revised Codes, by implication, recognizes the right to appeal at different times. In case of appeal from a judgment, the lower court loses jurisdiction over the judgment; but it still retains jurisdiction over the motion for a new trial, with power to rule thereon. Proceedings on motion for a new trial are independent of the judgment and, in a sense, collateral thereto. Any other interpretation of the authorities would, in some cases, deprive the losing party of his statutory right of appeal. (See Naglee v. Spencer, 60 Cal. 10; Rayner v. Jones, 90 Cal. 78, 27 Pac. 24; Knowles v. Thompson, 133 Cal. 245, 65 Pac. 468.)

2. Plaintiff testified: “I was thirty-two years old when this accident happened. I had learned the machinist’s trade in Germany, bnt never worked at it over here, where I had followed stationary engineering. I worked one day getting the pits open, and ran the stationary plant that night. The morning of the third day I went to work as a helper; helped Machinist Everts fitting driving boxes. My torch got dim, and I went to the tool-room to fill it. The can was empty. We worked for a while, and Everts told me to go over again. I found the can still empty; got an order for oil from the foreman, but was told at the storeroom there was no oil there. Everts said, ‘We will have to do the best we can without it. ’ It was then late in the forenoon. We worked till 3 P. M., and finished, and Everts told ■me to help Memory. We put on a couple of cylinder heads, and then Memory took me to the side of the engine, and said, ‘Go down there and clean off these binders.’ I went to the pit and sat down to get in, holding with my right hand. I slipped down, and when I thought I had solid footing I let go and turned around, and while I was turning around .something slipped and turned over under my foot. I fell over backward, and was knocked senseless. The roundhouse was dark. You could hardly do anything without a light. You could not see in the pit from where I was working, and I never had been in there, and knew nothing about the condition inside. I seen one of the binders standing up alongside of the pit, one of the ends sticking out, and could not see anything; but I did see this one. It was darker in the pit, because the engine was standing over it. I do not know what was in the pit. When I thought I had a solid footing, I let go. This was about 4 or half-past 4 in the afternoon. My apprenticeship as machinist was four years in the old country, and I became a machinist four years before coming to America. Q. As they take off the parts of engines, they lay them down at convenient places, where they can put them on again when they want to put them back? A. It was not customary where I used to work, where I learned my trade. On the outside platform, beside the engine, that morning, there was one or two driving-wheels; they were in the drop pit. There might have been other parts up on the floor. I noticed the cylinder heads there. The detached driving-wheels and blocks belonged to the engine over the pit into which I fell. I could not have gotten into the pit through the frame as I did, unless the driving-wheels were off. The driving-boxes that Everts and I were fitting were detached and between the two engines, twelve feet from their normal position. They were held fast in proper position on the engine by wedges and binders. The latter was what Memory told me to wipe off, and they and the wedges had to be removed before you could get the driving-boxes off. There are four wedges for each driving-box, and there are three or four driving-boxes on each side and one binder for each driving-box. I had worked an hour with Memory on the cylinders before the accident. I never worked in a machine-shop in this country, and the machine-shops we worked in in the old country did not have any pits, but had elevated tracks, and we could walk right under the engine. The blocks on which the drivers rested when we were fixing them were different sized wooden blocks. They were in the drop pit, where we were working. We used them to get the drivers up high. That engine was in there to be repaired, and I was putting back the parts when Memory told me, ‘Co down here and clean off these binders.’ We were then standing where the drivers would have been, if in place, right opposite the engine. He pointed to the pit, and the lower end of the binder that I saw leaning against the pit must have been resting slantwise on the floor. Q. Did you see anything of the other binders? A. I don’t know. Q. Did you see anything of the wedges? A. No, sir; I did not know what was in the pit, or anything about it.”

Everts testified: ‘‘Molt’s work showed ability. The pit was full of parts of the engine, eccentric straps, bolts, binders, binder pulleys, brake shoes, wedges, blocks, bars, chains, ropes, and tools that we were using underneath. Molt had not assisted in putting any of these pieces in the pit. From where Molt and I worked, you could not see the condition of that pit, because it was too dark. There were a few electric lights around. You needed artificial light to see what you were doing in the roundhouse, especially under the pit. There was more or less steam there all the time; skylight was always dirty. It did not let in much light. The things I saw in the pit were parts of the engine taken down in the course of repairing, or appliances used to take them down; and none of that stuff was up on the floor when we were working there in the morning. There was not sufficient light to see without artificial light.”

Memory testified: “I took Molt to the opening in the engine frame, where the wheels had been dropped, and told him to get down in the pit and wipe off that stuff that was around there, meaning the parts of the engine. It was usual to drop the parts into the pit until ready to be replaced, if no repairs were to be made on them, and the tools, ropes, and blocks used in the work are always kept right at hand. He stood right opposite where the drivers had come off at an opening in the frame. He probably asked me for a light at that time. I gave him none. The roundhouse was built like all others, and the pit was the ordinary standard pit. There was nothing in the pit, except the parts necessarily taken down from the engine to get the driving-wheels off, and such parts as were needed to repair or the appliances to do the work. I had been working on the particular engine about two weeks, using a torch. A torch was necessary while doing my work. I knew Molt did not have a light, and told him to go down there and wipe the parts off, and had expected that he would be able to do it after he stayed there for a while, and got accustomed to the darkness.”

Molt, recalled, testified that “in the old country, if an engine came into the house for general repairs, every piece taken off was put on a truck and taken to the wiper’s bench, cleaned, and left there until wanted.” He continued: “I did not know what they done with them here, but presumed they handled them the same as in the old country, and that they never remained under the engine, or anywhere around there. I do not know anything about what the practice was here in this round-’ house, in regard to the place where they put those parts of the engines that were removed. Many pieces have to be taken off that are not wiped or repaired. They would go to the wiper’s bench just the same; that was where all the wiping of parts was done. I did not see any bench around there.”

At the close of plaintiff’s case, defendant’s counsel moved for a nonsuit, on the grounds (1) that plaintiff’s own testimony disclosed that he was guilty of contributory negligence; and (2) that he assumed the risk arising from the conditions which produced his injury. This motion was overruled, but it should have [2] been granted. The plaintiff was a machinist of eight years’ experience. He was capable, and did his work well. He was thirty-two years of age, and thoroughly conversant with the work which he was employed to do. Several hours before the accident, he had attempted to get oil for his torch, but had failed, and thereafter managed to do his work without the aid of a torch. The roundhouse and pit were of standard construction, but were, necessarily, perhaps, quite dark, the pit especially so, all of which he knew and had known from 8 o’clock in the morning until 4 o’clock in the afternoon. The pit was so dark that a man could not see anything in it until he had remained there for some considerable length of time. The locomotive engine was undergoing general repairs. The parts of the machine, together with the appliances, such as blocks, pulleys, and tools used by the workmen, were in the pit, according to the usual custom of the company. Not any negligence is predicated upon this custom or upon failure to warn. Neither is it charged that defendant was negligent in allowing materials to accumulate in the pit. Therefore, the methods adopted by it for carrying forward its work are presumed to have been prudent and reasonable, under the circumstances. The negligence complained of is failure to sufficiently light the premises, and failure to furnish a light to the plaintiff. Not any of the minor parts of the locomotive which had been removed were to be ■observed above the pit, although it must have been apparent to the most casual observer, not to mention a skilled mechanic, that the machine was partly dismantled. Plaintiff was directed by Memory to get down into the pit and “wipe. off. the stuff,.” or “clean off these binders,” meaning the parts which had been removed. T-his was the work he was hired'to do. One binder was in sight, projecting ont of the pit, or leaning against the side thereof in an inclined position. The learned counsel for the plaintiff appear to have realized that, under these circumstances, he would be held to have known and appreciated the risk of getting down into the pit, darkened as it was, and filled with tools and portions of the engine, unless they could establish by him that he was ignorant of the conditions there existing; so he was recalled for the purpose of testifying that in the old country the removed parts were taken away to a wiper’s bench. But this testimony does not assist him. He saw no wiper’s bench in this roundhouse, and had no reason, so far as his testimony discloses, for believing that one was in use. On the contrary, he saw one binder in the- pit, and was directed by Memory, according to the testimony of the latter, to get down and wipe off the stuff. What stuff? Obviously the stuff— materials, tools, etc. — in the pit. How can he be heard to say that he had no knowledge that there was anything in the pit? No reasonable man ought to credit such a statement, in the light of this testimony; and this case must be decided according to the standards of reasonable men. WTiile, under some circumstances, negligence might have been predicated upon the condition of this dark pit, the plaintiff, who knew all about the situation- which confronted him, and who must have appreciated the danger of “slipping into” a dark pit filled with tools, blocks, pulleys, and engine parts, cannot be heard to say that he did not assume the risk. (See Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Fotheringill v. Washoe C. Co., 43 Mont. 485, 117 Pac. 86.) The danger and peril of “slipping” into the pit was patent, and plaintiff must have appreciated it.' The only inference to be drawn from the testimony is that the object encountered by him was one which was properly in the pit-Therefore he assumed the risk.

3. We doubt very much, also, whether a skilled workman, thirty-two years of age, could perform the heedless and reckless act of “slipping” down into a dark pit in ignorance of what was at the bottom thereof, letting himself go when he “thought he had solid footing,” without incurring the imputation of contributory negligence as a matter of law.

4. It is claimed by respondent that appellant cannot rely upon the affirmative defenses' of contributory negligence and assumption of risk, because they are not properly or sufficiently pleaded. • The cause was tried before this court laid down the rule of pleading found in Gleason v. Missouri River P. Co., 42 Mont. 238, 112 Pac. 394. Appellant attempted to plead the two affirmative defenses, and in fact did plead the same, in general language, in accordance with the custom theretofore [3] prevailing. The cause was tried on the theory that the defenses were sufficiently pleaded. No objection was made to the answer on that score in the court below. The court charged the jury, in effect, that these defenses were to be considered. In addition to the foregoing, the plaintiff’s own testimony [4] discloses the infirmities which we have pointed out; and the defendant could therefore, on motion for nonsuit, take advantage of the same. (Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Harrington v. Butte etc. Ry. Co., 37 Mont. 169, 95 Pac. 8, 16 L. R. A., n. s., 395; Longpre v. Big Blackfoot M. Co., 38 Mont. 99, 99 Pac. 131; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781.)

The judgment and order aré reversed, and, as the plaintiff [5] has had one fair opportunity to prove a cause of action, and has failed, the district court is directed to dismiss the case.

Reversed.

Mr. Chief justice Brantly and Mr. Justice Holloway concur.

Case Details

Case Name: Molt v. Northern Pacific Railway Co.

Court Name: Montana Supreme Court

Date Published: Jan 20, 1912

Citation: 120 P. 809

Docket Number: No. 3,043

Court Abbreviation: Mont.