212 P. 287 | Mont. | 1923
delivered the opinion of the court.
This is an action to recover damages for personal injuries caused by the alleged negligence of the defendant, a corporation which owned and operated a telephone line between Ekalaka and Baker. It appears that between these two places there was a public highway, which for brevity we shall refer to as the main road. About ten miles southwesterly from Baker this highway entered the south half of the southeast quarter of section 27, township 6 north of range 59 east, which belonged to a man by the name of Bechtold, at a point about 400 feet north of its north line, and extended in a southwesterly direction across the same, leaving it at a point about 200 feet north of the south quarter-section corner. At a point about halfway across the west half of this tract a private road leading to the George Staff ranch branched off the main road, extending in an easterly direction, which road will be referred to as the George Staff road.
The pole line of the defendant company extended along the southerly line of the main road until it reached a point approximately 300 feet northeasterly from the place where the George Staff road branched off the main road, thence departed
The complaint alleges: That at the point where defendant’s telephone line crossed over the George Staff road the wires of the company “were so negligently and carelessly kept and maintained by the defendant * * * upon the seventeenth day of December, 1919, and for a long time prior thereto, that a horseback rider could not pass under said wire at said point,” and that “upon said seventeenth day of December, 1919, while plaintiff was lawfully using said road, and riding his horse thereon, and because of the careless, wrongful, and negligent manner in which defendant * * * maintained its line of telephone at that point, * * * plaintiff, acting with due care, and without negligence upon his part, rode against said wire, and was violently thrown from his horse to the ground, and thereby sustained lasting and permanent injuries. ’ ’
The testimony disclosed that the first telephone pole south of the George Staff road was broken down, and the wire extending across the road was slack so that a person riding under the same on horseback might come in contact therewith. Between the broken telephone pole and the road there was a draw or ravine with a cut bank which one witness estimated to be of a depth of seven or eight feet, while others made it considerably more shallow.
The plaintiff, called as a witness in his own behalf, testified that he was in Baker on December 17, 1919, and at about 3:30 P. M. started for his home, traveling along the main road, riding a gentle horse. When he arrived at a point about eighty rods northeast of the place where the George Staff road branched off the main road he passed two men, Axel Lindquist
Axel Lindquist testified that a few minutes after plaintiff passed him on the road he found him (plaintiff) lying on the ground at a point off the road about seven or eight rods southwesterly from the point where the telephone line crossed the George Staff road, and about ten or twelve rods south of the main road; that plaintiff was “trying to come to, as though he had been hurt—out of his sense,” and that plaintiff “wanted to know what had happened.”
Frank Stanhope, plaintiff’s father, testified that the day following the accident he went to the place where plaintiff was discovered after the injury to look for plaintiff’s mittens, cap, and spur, and “I saw indications of the accident over there. I seen blood on the wire in three different places. I went straight down the Ekalaka road, and just before I struck the George Staff road I went right toward the telephone wire.
The .complaint alleges, and the answer admits, that the defendant “owned the necessary poles, crossbars, * * * and other things necessary for the purpose of carrying on its said business.” This allegation is broad enough to embrace the necessary easements and rights of way for the purpose of carrying on the business, including one across the Bechtold premises for the pole line, so that it affirmatively appears that the defendant maintained its line across the Bechtold premises-under a right or title thereto, and was not a trespasser thereon. The evidence above quoted, with the testimony of other witnesses showing the extent of plaintiff’s injuries, constitutes his case as disclosed in the record.
After the plaintiff rested his case the defendant interposed a motion for a nonsuit, .which was -denied. The defendant then introduced some testimony but it did not tend in any way to throw .light upon the acts of the plaintiff at or before the time he received the injuries complained of, and thereafter moved the court to direct a verdict in its favor and against the plaintiff, which motion was denied. The jury returned a verdict in favor of plaintiff, upon which judgment was entered. From this judgment, and an order denying its motion for a new trial, the defendant appeals.
As we view the case, it is only necessary to consider the rulings of the court upon the motions for nonsuit and directed verdict. Conceding for the purpose of argument, but not deciding, that the circumstances proven by the plaintiff were sufficient to establish, prima facie, that his injuries were -the result of coming into contact with the defendant’s telephone line at the place where the spots of blood were found on the
It was incumbent upon the plaintiff to show not only that he was injured by coming in contact with defendant’s telephone wire as alleged in his complaint, but also that this was the result of negligence on the part of the defendant, and that such negligence was the proximate cause of his injury. This he wholly failed to do.
As above shown, the plaintiff’s contact with the defendant’s telephone wire, if he ran into it at all, was at a point seven or eight rods south from the place where the wire passed over the George Staff road, and at a place on the Bechtold premises which the defendant was rightfully using as a right of way for its telephone line, and where the plaintiff had no right to be. In other words, so far as the record shows, the plaintiff was a naked trespasser upon the defendant’s premises. (29 R. C. L. 57.) The only dnty which defendant owed to the plaintiff while he was a trespasser upon its right of way was to refrain from injuring him willfully or wantonly, and to use ordinary care to avoid injuring him if it discovered him in peril. (Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373.)
Moreover, the facts in this case bring it within the .rule laid down by this court in Howard v. Flathead Independent Tel. Co., 49 Mont. 197, 141 Pac. 153. In that case it appeared that the plaintiff was driving along the public highway at a point where the traveled portion of the road was about twelve feet wide; that the defendant company maintained a pole line along the north side of the highway, and had anchored one of its poles with a guy wire which extended to a point one to three feet from the traveled portion of the road. The plaintiff’s injuries resulted from her driving her vehicle outside of the graded portion of the road, so that the wheels came in contact with this guy wire, resulting in frightening her horse, the overturning of the vehicle in which she was riding, and consequent injuries. In the course of its opinion the court said: “At the time the plaintiff came in contact with the guy wire she was driving outside the graded or traveled portion
So, in this case, if the plaintiff had set forth in his complaint all of the facts which the testimony introduced on his part disclosed, without any explanatory allegation showing why he was at the point where he was discovered by the witness Lindquist, he would have failed to state a cause of action, upon the theory that his own negligence contributed to his injury. Defendant’s motion for nonsuit should have been sustained.
It appearing that all the evidence which could be obtained was presented at the trial, and that it is wholly insufficient to sustain the verdict, no useful purpose would be served by ordering a new trial. The judgment and order appealed from are reversed, and the cause is remanded to the district court of Fallon county, with directions to dismiss the action.
Rever seel.