205 P. 825 | Mont. | 1922
prepared the opinion for the court.
On December 5, .1916, the Chicago, Milwaukee & St. Paul Railway Company, in operating its main line of railroad from Chicago to Seattle, maintained a turntable at Harlowton, then Meagher, now Wheatland, county. Harlowton being the sta
The complaint was not attacked by demurrer or otherwise or at all before the trial. The defendant answered and sought to raise the sufficiency of the complaint at the trial by objection to the introduction of testimony. This attack would have been good had it not been for the affirmative allegations of its answer to the effect that deceased climbed upon an engine and with a torch on the end of an iron rod was applying the same to the compressed-air pipe, which had become frozen, when he brought the rod in contact with the electric wire, and that by reason thereof the current was communicated to his body and caused his death. The electric wire, the air-pipe, the engine, and the iron rod are described by the affirmative allegations of the answer so that there is no room for doubt but that they are the same as mentioned in the complaint. The answer supplies exactly what the com
The plaintiff desiring to bring before this court the evidence
On the'Merits.
At the conclusion of plaintiff’s case, defendant moved for a nonsuit, which motion was sustained, and judgment entered thereon. This appeal is from the judgment, and the only error specified is that “the court erred in sustaining the defendant’s motion for a nonsuit.” Thus a consideration of the entire testimony has been necessary.
Deceased was a hostler’s helper at the roundhouse, and had been so engaged at least a month and a half immediately before his death. Plaintiff never worked on the same shift with deceased, but did the same work on the opposite shift, lie and his partner used the same rod for thawing the air line by climbing on the cab of an engine. The air line was four or five feet from the electric wire. Eli Evanoff, the only eye-witness to the accident, testified that deceased, when killed, was standing on top of the cab; that he had an iron rod in his hand; that there was lighted waste on one end of it; that he handed the rod down and twice witness placed waste on it and handed it back, and then when in the act of handing it down again “he [meaning deceased] swung into the electric wire and it came into contact, and that is the end of it.” There was a strong wind, and the witness
On the other hand, if we assume that the appliances, the engine and the rod, were furnished by the defendant, or that their use was acquiesced in by it, there is no evidence that they were unsuitable if used with ordinary care. True, the rod was a conductor of electricity, but the electric wire was four or five feet from the air line where the rod was being
The master must exercise reasonable care to furnish rea
The record fails to show that the deceased, when injured,
We recommend that the judgment be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment is affirmed.
Affirmed.