17 Mont. 372 | Mont. | 1895
This action was brought by plaintiff to recover damages for injuries received by him when in the employ of defendant as a brakeman and switchman. The plaintiff was engaged in switching cars at or near the station of Neihart, on the defendant’s railway. The engine used on this occasion was a road engine. The distinction between a road engine and a switch engine is this: The road engine has a pilot in front; a yard or switch engine has a foot board, both front and rear, upon which the brakemen and switchmen step and stand while switching cars. The engine in this case had been used on the work ordinarily performed by a yard or switch engine. It had no footboards in front or rear, and therefore no convenient or safe place for the switchmen to mount and ride while engaged in their duties. Furthermore, in making up trains and switching cars, it was inconvenient to use a road engine, for the reason that the cars would have to be attached to the engine by a pilot bar, which is too heavy for convenient use. To convert the road engine ■ to the use of a switch engine, two flat cars were placed in front of the engine. The second flat car from the engine was so placed that the braking apparatus was at the end furthest from the engine. It was equipped with a double connected brake and brake staff. The purpose of placing these flat cars as they were was to enable brakemen or switchmen to mount the brake beam, and hold by the staff, in moving about the yard while switching cars. The engine and these cars were moving down the track, and crossed a switch. Having crossed the switch, it was the duty of the plaintiff to throw the switch to let the train in on another track. As the last car passed over the switch, the engineer reversed his engine. The plaintiff threw the switch, and stepped into the middle of the track. The car approached him at the rate of two or three miles an hour. He stepped carefully upon the brake beam, and took hold of the brake staff carefully with both hands. The staff was loose in its socket, and was bent at an angle of about 30 degrees from the perpendicular. It bent away from the plaintiff, as he stood. He testified that for this reason it appeared straight to him,
It appears further that, although the engine had already started when plaintiff threw the switch, he signaled the engineer to come on. He said that, at the rate the train was approaching, he could have gotten off the track if he had seen the defective condition of the brake staff at a distance of 6 or 10 feet. He did not see the defective condition, for the reason above mentioned. He had a right to signal the engineer to stop, if there was occasion to stop in the performance of the business in which the train was engaged. There were no means provided for mounting the car on the side. It was also impossible or dangerous to mount from the side, owing to the roadbed being washed out and depressed. He was obliged to get upon the train and ride in order to be at a point about 340 feet distant, where there was another car to be coupled. He could not have walked to that point, while the train was moving to it, and be there in time to make the coupling. These facts appeared by the testimony of the plaintiff and two other witnesses. These two flat cars were equipped with air brakes, and while plaintiff was employed at this place he did not see the hand brakes used for braking the cars. These facts being shown,' the defendant moved for nonsuit, upon the ground that no negligence had been shown on the part of the defendant, and that plaintiff appeared to be guilty of contributory negligence.
As to proof of negligence or contributory negligence sufficient to go to the jury, the writer of this opinion said in Wall v. Helena St. Ry. Co., 12 Mont. 61, as follows: “I am fully aware that negligence of the defendant or contributory negligence of the plaintiff is a matter for the jury, unless the evidence is such as to leave the matter clear and undisputed
In the case before us we are perfectly satisfied that there was a sufficient showing of negligence on the part of the defendant to go to the jury. It was not perfectly clear that there was no negligence by defendant. The brake beam and brake staff being used for the purpose of mounting the car by the brakeman and switchmen, we do not hesitate to say that, to allow the apparatus to remain in the condition it was, was a showing of negligence sufficient to go to the jury.
The next question upon the decision of the court in denying the nonsuit is,. was it perfectly clear that plaintiff was guilty of contributory negligence, so that that question should, have been taken from the jury, and the court grant a nonsuit ? • We do
The facts in this case differ from those in Cunningham v. Chicago, M. & St. P. R. R. Co., 17 Fed. 882, in which case Mr. Justice Miller used such strong language in granting a new trial, and in which case the learned justice said that this was not only a case of clear negligence on the part of the deceased, but a case of stupid negligence on his part. We are scarcely prepared to fully endorse the remarks in 'that case, even upon the facts which there existed. But the distinction between the facts in that case and this is that here, so far as the plaintiff could reasonably be expected to see, the apparatus of the car was in a proper condition for him to make a safe mount. In the Cunningham case the deceased undertook to mount the footboard of a switch engine from which the hand railing had been torn away the night before. The case is not fully stated in the report, but, as far as it appears, it seems that the deceased could, by looking at the rear of the tank, have very readily perceived that the hand rail was missing. In this case, plaintiff could not see that the brake staff was bent, because it was bent directly away from him, and, so far as he could see, it might readily appear to be straight. And, seeing an apparently straight brake staff, it does not appear that he should also have looked at the brake wheel, to observe that it was tipped, for the brake wheel might easily have been tipped from causes other than the bending of the staff. Taking the facts all together, we are not at all satisfied that contributory negligence was so clearly shown that the court should have removed that subject from the consideration of the jury, and ordered a non-suit. We are therefore of opinion that in this respect there was no error committed by the court.
The treatment thus far brings us logically to the next as
The next question raised by appellant is its exception to the allowance of certain testimony. It may be stated as he puts it in his own brief, as follows: “Q. Mr. Ennis the testimony in this case shows that there were two flat cars, with double connected brakes, with brake staff and brake beam on the further end of the second car from the engine, and this was a road engine; that this engine and the cars had passed out of the side track where the switch had been thrown by the plaintiff, and the engine and cars were going on up to another track, about 340 feet, to make a head-end coupling with other flat cars, and that it was necessary for the plaintiff to be at the cars to make the coupling; that the engine and cars were approaching the plaintiff at the rate of about three miles an hour; that
We will examine the objections to the question as they were
It is said in Miller v. Illinois Cent. Ry. Co., 57 N. W. 418, 89 Iowa, 567: “The plaintiff introduced a witness who testified that it was usual and customary for brakemen, in going oyer the tender, to step on the lid of the manhole. We do not understand counsel to object to this line of evidence. It was surely proper for plaintiff to show that he was in the line of his duty when he received the injury, and that he pursued the course usually adopted by men in that employment under similar circumstances. (Jeffrey v. Keokuk, etc., R. R. Co., 56 Iowa, 546, 9 N. W. 884; Whitsett v. Chicago, etc., Ry. Co., 67 Iowa, 150, 25 N. W. 104.) The objection of the defendant is that the witness was allowed to state what he would do under the same circumstances, and what was considered a safe course to pursue. We need not set out the questions and answers to which objection is made. When the whole testimony of the witness is considered the objections do not appear to be well taken. The questions and answers show that the witness did not give his own opinion of the' proper course to pursue. ’’
As in the Iowa case, so in the case at bar, the witness did not give an opinion as to what he would do, but as to what experienced persons would do.
In Larson v. Ring, 43 Minn. 88, 44 N. W. 1078, there was a question as to negligence of contractors in stretching a guy from the top of a derrick across the street. The supreme court said: “The court erred in permitting defendant to show at what height or distance above the public ways it was usual for contractors to stretch or suspend guys or ropes. ’ ’ The court, in speaking further of usages and customs, said: “It would depend largely, perhaps, on whether there had been
We find the following in Lawson on Usages and Customs (page 318): “Judge Story, in stating the degrees of negligence, and the measure of diligence in different relations, says: ‘Indeed, what is common or ordinary diligence is more a matter of fact than of law. And in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers as well as the institutions peculiar to the age; so that, although it may not be possible to lay down any very exact rule applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs in the age and country in which they live. ’ ’ Further in the same volume, we find the following: “In Vaughan v. Menlove Vaughan, J., said, in speaking of the evidence of negligence: ‘The conduct of a prudent man has always been the criterion for the jury in such cases, but it is by no means confined to them.’ ” See, also, by the same author, section 171, p. 324: See, also, 27 Am. & Eng. Enc. Law, p. 902, with a large collection of cases.
We are satisfied that, under the circumstances of the case at bar, it was not error to admit this testimony.
The next error assigned by appellant is the modification of an instruction which it offered. The instruction offered was as follows: “An established usage or custom among men engaged in the same employment cannot justify or excuse an act negligent in itself.” There does not seem to be an objection to this instruction as a matter of law, but, as noted iff the treatment of the motion for a nonsuit, it did not appear clearly that the act of the plaintiff was negligent in itself. The court
The next question presented by appellant is that the verdict is against the law, for the reason that the jury disregarded the instructions of the court, and declined to apply them to the evidence. This is a proposition of law with which we fully concur, — a proposition which is fully discussed in the case of Murray v. Heinze, ante, page 353. But the question here is, was the verdict against the instructions ? The first instruction contrary to which the appellant claims the verdict was rendered is as follows : “If, in the discharge of a dangerous duty, an employe of a railroad company voluntary places himself in a dangerous position unnecessarily, when there is another place that is safer that he could have chosen, and he has time to exercise his judgment, and an injury results to him by reason of his position, he cannot recover for such injury.” But it is to be observed that this instruction lays before the jury the conditions of an employe voluntarily placing himself in a dangerous position unnecessarily, when there is another place safer that he could have chosen, etc. But, as appears in the treatment of this case heretofore in this opinion, the evidence is not conclusive that the plaintiff voluntarily and unnecessarily put himself in a dangerous position when he might have chosen a safer one. That was an open and disputed fact in the case, and there was evidence, as before shown, sufficient to go to the jury upon this question; and the jury, in finding a verdict for the plaintiff, did not, by necessity, find against this instruction. The same reason applies to the other instructions contrary to which the appellant claims the verdict was rendered.
It is said in American Co. v. Bradford, 27 Cal. 365, and Swift v. Mulkey, 14 Or. 65, 12 Pac. 76, that it is discretionary with the court whether or not it submit special findings to the jury. But in the case at bar no findings were requested by the appellant. He did not.ask that the court submit special findings upon any branch of the case. Not having made this request, he cannot complain of the action of the court. It certainly would have thrown the jury into inextricable confusion to instruct them, as appellant requested, that they might find special findings or special verdict, when not the slightest intimation was given to them upon what questions of fact they should find.
Appellant complains that the court refused to instruct the jury that there was no evidence tending to show that the defendant had failed to use proper care to keep its track and roadbed in proper condition; nor that there was any evidence that would justify the jury in finding that the defendant had failed. to use reasonable care in keeping the ground on both sides of the track in proper condition for use by the employes. But, if .this instruction had been given, it would, have taken that question of fact wholly from the jury. We are of opinion that there was some evidence at least upon this question,
As to the exception to the refusal of the court to give instructions Nos. 7 and 12, requested by the appellant, without reciting them, we are satisfied to say that the questions there raised were covered by other instructions given by the court.
Appellant again complains of the refusal of the court to give the instruction requested by it, Ro. 15, as follows: “The undisputed evidence is that the plaintiff had the power to stop the engine and cars by a signal, and that it was the duty of the engineer to obey his signals. ’ ’ Following this was defendant’s request 22, refused, as follows : “I charge you that the plaintiff had a right to stop these cars for the sole purpose of mounting them, if, in the proper discharge of his duties, it was reasonably_ necessary that he should mount the car on the brake beam, and if the act of mounting a flat car or the brake beam thereof, while moving at the rate of about three miles an hour, would ordinarily be attended by any considerable danger. ’ ’ It is true that the plaintiff had the power to stop the engine by signal for the purpose of mounting them, but his right to stop the train was only in the course of his business as brakeman, and it was all through the case a question whether his mounting the car while in motion was per se contributory negligence. We have determined that that w,as a question for the jury. If the court had given the instructions as charged, it would have taken that question away from the jury, and practically instructed the jury that it was contributory negligence per se to mount the cars as he did.
The appellant complains of the refusal of the court to instruct the jury as requested in Nos. 20 and 21, which are as follows: “It appears from the evidence that the plaintiff’s injuries resulted from his own voluntary act, in mounting the car as it was in motion. This being the case, it devolves upon the plaintiff to satisfy you by a fair preponderance of the evidence that he was not guilty of negligence contributing to his injury.” “Under the circumstances of the case, the burden
Counsel on both sides of this case have extensively argued the question of the burden of proof of contributory negligence. It is as unnecessary to review the law upon that topic in this opinion as it was to discuss it in the briefs, as it has long been settled in this state. (Higley v. Gilmer, 3 Mont. 97; Kennon v. Gilmer, 4 Mont. 433; Wall v. Helena St. Ry. Co., 12 Mont., at page 56; Nelson v. City of Helena, 16 Mont. 19.) Contributory negligence is a matter of defense, and plaintiff need not allege or prove its absence. The corollary to this rule is that, whenever the plaintiff’s own case raises a resumption of contributory negligence, the burden of proving its absence is immediately upon him, and it devolves upon the plaintiff to clear himself of suspicion of contributory negligence which he himself has created. (See cases last cited.)
The instructions refused were based upon the ground that the plaintiff had shown himself guilty of contributory negligence. As heretofore demonstrated, this was not the fact. The instructions were therefore inapplicable and properly refused. It did not appear by the testimony on the part of the plaintiff that there was a presumption of his contributory negligence.
Having reviewed the points raised upon this appeal, we are of opinion that the judgment and the order denying a new trial should be affirmed, which is accordingly done.
Affirmed.