199 P. 252 | Mont. | 1921
prepared the opinion for the court.
This is an appeal by plaintiff from a judgment entered on a verdict in his favor for the sum of $51 and costs, and from an order overruling the plaintiff’s motion for a new trial.
The defendant corporation, on the fifteenth day of July, 1915, and for several years prior to that time, operated a street railway along and over Florence Avenue, in Butte, Montana; the track extending practically north and south. At 11:30 o’clock P. M. on the fifteenth day of July, 1915, and at a point on said Florence Avenue at or near its intersection with B Street, the plaintiff’s intestate, Edus B. Lund, was struck by an electric car operated by employees of the defendant company, and was so badly injured that he died on the following day. Plaintiff alleges that the deceased came to his death by reason of the negligence of defendant’s employees in the operation of said car, and for defects in the car. The grounds of negligence charged in the complaint are (a) danger
The answer of the defendants contains admissions and denials, but it is sufficient here to say that the negligence charged against the defendants is denied, and that defendants charge the deceased with contributory negligence in the following particulars: That he left the open and used portion of Florence Avenue, and attempted to cross the car-track at a place where Florence Avenue was unopen, uneven, rough and unguarded, and where there was no crossing, and at a place other than a regular crossing, and at a time when a ear was approaching; and that whatever injuries were suffered by the deceased were caused as a result of his own contributory negligence.
Leonard Gustafson, a witness called by the plaintiff, testified that on the day of the accident the deceased hired a horse and buggy, and that the witness and deceased went to a funeral. In detailing the travel and course during the day he states: That they first went to the undertaker’s place, then to the cemetery, then to the Five Mile House, then to the Nine Mile House, then to the Ten Mile House, then to the) Mountain View Hotel, and that they left the latter place a few minutes before 11 o’clock at night; that at that time the witness was driving. It was pretty dark, and he could not see the road very well. “When we came to Florence Avenue, we came into a little ditch with the front wheel. We had to step out of the buggy, both of us. I got out of the buggy first. * * * When I got out of the buggy, I was looking around, and I seen the street-ear track right there, so I tried to get the horse and buggy over. When I looked around, I was right on the side of the buggy. Lund, he was right close to me. I
Angus McLeod, called as a witness by plaintiff, testified that he was riding on the car at the time Lund was struck; that the car was traveling at a moderate rate of speed, from twelve to fifteen miles per hour; the motorman was at his proper station; the lights were burning brightly in the car at all times; that it was an open car, nothing unusual about the machinery; that it was a straight track; that he noticed the headlight “burning bright” at the last curve; and that he did not notice the headlight after that time, but all other lights were burning brightly when the ear stopped. The stop was made from fifteen to twenty-five feet after the brakes were applied; that it was a “sudden stop — a very quick stop.”
Joseph Armstrong, called by plaintiff, testified that both Florence Avenue and B Street were open streets at the time of the accident and that grading was going on there. Plaintiff’s witnesses also testified that at the place where the buggy crossed the street-car track there were no planks between the rails; that the dirt was filled up to the top of the ties.
At the close of plaintiff’s evidence, defendants moved for nonsuit, which was sustained as to defendant Wharton, and overruled as to the other defendants.
Witnesses for the defendants testified that they followed the tracks of the buggy, which was driven by Gustafson and deceased; that they crossed the street-ear track in the vicinity of C Street, extending then in an easterly direction; that they turned in a northerly direction, parallel to the street-car track, which they followed for some little distance, between Florence Avenue and Massachusetts Street, where there was no road at all, and extending to a point about fifty or sixty feet from what is known as B Street. There the tracks turned abruptly toward the west and went down a bank, due to an excavation on Florence Avenue, in an angling direction toward the northwest, across the street-car tracks; that the streets at that point were plowed, and they were doing grading there; that there was an embankment of a foot or eighteen inches where the buggy went across; that the country there “looked like No Man’s Land. It was kind of a lot of holes, like a plowed field, you know; very rough.”
Defendants’ Exhibits 1 and 2, being photographs of the place of the accident, clearly support the statements made by defendants’ witnesses as to the character of the ground and of the crossing where the accident occurred.
The evidence of the defendants is further to the effect that there was not any defect in the headlight; that all the lights on the car, including the headlight, burn in series with four lamps in the car and one in the headlight; that, whenever the four lamps in the car are lit, the headlight is burning; that the street-car, at the time of the accident, stopped about opposite the buggy; and that Lund’s body had been dragged about five feet. Witnesses for the defendants also testified that the deceased was drunk at 8 o’clock that night, and that both Lund and Gustafson, the driver, were drunk at the time of the accident. This fact was controverted by the plaintiff’s witnesses. At the close of the testimony, the defendants asked for a directed verdict in their favor, which was overruled.
The respondents take issue with this contention of appellant and cite the following .authorities: Haley v. Mobile & O. R. Co., 7 Baxt. 239; Such v. Cleveland etc. R. Co., 2 Ohio Dec. (Reprint) 352; Smith v. Chicago, M. & St. P. Ry. Co., 6 S. D. 583, 28 L. R. A. 573, 62 N. W. 967; Jenkins v. Hankins, 98 Term. 545, 41 S. W. 1028; De Luna v. Union Ry. Co., 130 App. Div. 386, 114 N. Y. Supp. 893; Leahy v. Davis, 121 Mo
If this were an appeal by the defendants, asking to have the verdict and order reversed, this court would be compelled to grant the reversal; but this is an appeal by the plaintiff from a judgment in his favor. The defendants (the respondents here) are not taking issue with the judgment, but, on the contrary, ask that both the judgment and the order appealed from be affirmed. To grant a reversal in “this cause would be reversing a judgment and order at the instigation of the party — •
We recommend that the judgment and order appealed from be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Affirmed,
Rehearing denied July 2, 1921.