Mulligan v. Montana Union Railway Co.

19 Mont. 135 | Mont. | 1897

Hunt, J.

The plaintiffs (respondents) have not seen fit to appear by counsel or by brief in this court. We have, nevertheless, examined all the errors specified by respondent Mulligan in his motion for a new trial, to. determine whether any of them were well taken, and justified the lower court in granting the motion. In this examination, however, we have been precluded from considering the testimony, because the plaintiff did not base his motion for a new trial upon the insufficiency of the evidence to sustain the verdict in favor of the railroad company, or upon any other possible errors based “upon rulings on the evidence, but relied entirely upon alleged errors committed in the court’s instructions to the jury. (Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258.)

The first instruction assigned as erroneous substantially told the jury that, if plaintiffs directly contributed to their own injuries by their own negligence, they could not recover, even if the defendant was negligent. This is the general elementary doctrine of contributory negligence, laid down by text writers and sustained by the decisions of this court. (Beach on Contributary Negligence, § 14; Hamilton v. Railway Co., 17 Mont. 334, 42 Pac. 860, and 43 Pac. 713.) We see nothing of record to take this case out of the general rule.

The next error assigned is that the court instructed the jury that defendant was not obliged to furnish the plaintiffs with the newest or latest improvements in construction upon the engine, but that all the law required was that defendant furnish plaintiffs with reasonably safe machinery and appliances, and that, if the jury believed from the evidence that the boiler of the locomotive was a good boiler of the kind, and in good repair, then plaintiffs assumed the risks incident to their employment, notwithstanding the jury’s belief that a boiler of different construction would have been safer. This instruction must be considered with reference to several others, wherein the court expressly told the jury that the duty of the master is to use ordinary care to furnish suitable and safe machinery and appliances, and to keep the same in good repair, and to make all needed inspection and examination of the machinery and appliances, with a view of keeping the same in repair, and that a failure to do so would render him liable to the servant injured by reason of the omission of the master to properly perform these duties. The instructions on this point were in accord with our recent decision in Johnson v. Mining Co., 16 Mont. 164, 40 Pac. 298, where, in discussing the meaning of the words “ordinary care,” we said: “And so we find the opinions, in discussing the definition of ‘ordinary care, ’ recognize that no fixed, arbitrary rule can be laid down, but that the degree of care and vigilance required varies according to the exigencies which require attention and vigilance, conforming in amount and degree to the particular circumstances under which they are to be exercised. The care and attention necessary on an employer’s part in furnishing a steam boiler is relative to the work to be done by the boiler, and the capacity of such án instrument for harm as well as good. * * * The employer is in duty bound to see that the machinery is fit and safe for the work only so far as due and reasonable care and diligence and prudence will go towards having it and keeping it safe and fit. He is not a warrantor of the safety of the machinery, and, when he has exercised the degree of care hereinbefore discussed as ordinary or reasonable, his duty is done. (Wharton on Negligence, § 211.)”

Error is also assigned because the ■ court charged that the engineer and fireman were fellow servants, and, if the fireman was injured by reason of the engineer’s negligence, plaintiff could not recover. This is the law generally, as laid down by the supreme court of the United States, cited and followed by this court in the following cases, by which we feel bound : (Goodwell v. Railway Co., 18 Mont. 293, 45 Pac. 210; Hastings v. Railway Co., 18 Mont. 493, 46 Pac. 264.)

The remaining error assigned by respondent is predicated upon the following instruction: “The jury are instructed that a servant, when he engages in a particular employment, is presumed to do so with a knowledge of its ordinary hazards, whether from the carelessness of fellow servants in the same line of employment, or from latent defects in the machinery and appliances used in the business, or the ordinary dangers of the use of the same, and the law presumes that, when he enters into such employment, he assumes .all such risks; and if, in this case, you believe, from the evidence, that the accident in question was occasioned by any latent defect in the machinery, or that it was occasioned by the negligence of the plaintiff or his fellow servant, then you are instructed that the plaintiff cannot recover in this case, and you should find for the defendant. ” The appellant’s brief advises us that the last foregoing assignment of error was the only one pressed upon the consideration of the court below, when the motion for a new trial was argued. We further infer, from appellant’s brief, that the particular objection urged was that the jury were misled by not having before them some explanation of the meaning of the words “latent defects” in the machinery. But, when the instructions are considered as a whole, the force of this objection is lost, because they were told elsewhere as follows : “I further instruct you that if you find, from the evidence in this case, that the boiler in question in this case exploded without any fault on the part of the plaintiffs, or either of them, and that such explosion was caused by defects in the boiler, as alleged in plaintiffs’ complaint, which the agents of the defendant, charged with the duty of keeping it in repair, knew of, or by the use of ordinary care ought to have known of, and that plaintiffs were injured by such explosion, then I instruct you that each of the plaintiffs will be entitled to recover of the defendant such damages as will compensate him for such injury, not exceeding the amount claimed in his complaint. ’ ’ Examining these two instructions, we find that by one the j ury were told that, if the explosion was not caused by any fault on the part of plaintiffs, but was caused by reason of any of the defects named in the complaint, and which the defendant knew of, or by exercise of ordinary care and prudence ought to have known of, the plaintiffs could recover, while by the other they were told that the defendant was not liable for accidents arising by reason of latent defects in the machinery and appliances used. We take it to be the law that, if the master can only be held to the use of ordinary care and prudence in furnishing safe machinery to the servant, and keeping the same in proper repair, but that he cannot be held as a warrantor of the safety of the machinery, it reasonably follows that the master is not liable to the servant for latent defects in the machinery or tools furnished which ordinary inspection and exercise of ordinary care would'not or has not detected. Now, when this doctrine is applied to the two instructions quoted above, we find the one practically .explanatory of the term ‘ ‘latent’ ’ used in the other, and that the doctrine and significance of patent and latent defects and dangers, incidental to the plaintiff’s employment, was sufficiently laid before the jury. The respondents did not ask the court to instruct the jury more fully, or at all, so far as the record advises us, upon “latent defects,” and they cannot now complain because the instructions that were given did not more fully state the law.

Our judgment is that the respondents’ rights were not prejudiced by the instruction of the court, and that, upon review of all the assignments of error, the charge conformed to the material issues raised by the pleadings. It follows that we discover no sufficient ground upon which to sustain the action of the district court in granting a new trial to plaintiff. It is therefore ordered that the order granting a new trial be reversed.

Feversed.

Pemberton, C. J., and Buck, J., concur.