197 P. 839 | Mont. | 1921
delivered the opinion of the court.
This is an action for damages for death by wrongful act. It is alleged in the complaint, in effect, that on March 6, 1917, Thomas Carter Stricklin was upon a bridge or trestle which formed a part of the track of the defendant railway company’s road; that an unobstructed view of his position could be had for more than half a mile; that he was not observant of the approach of defendant railway company’s locomotive, and that defendants did see, or by the exercise of ordinary care could see, that he was in a position of peril and unobservant of the approach of the locomotive; that he was seen, or by the exercise of ordinary care could have been seen, by defendants, but nevertheless defendants negligently failed to give warning of the approach of the locomotive, and negligently permitted it to strike the said Thomas Carter Stricklin, inflicting injuries from which he died.
At the trial counsel for defendants objected to the introduction of any evidence upon the ground that the complaint does not state a cause of action. The objection was sustained, but in its order the trial court pointed out the defect, namely, that the allegations charging negligence are in the alternative and do not disclose actual discovery. The opportunity was extended to counsel for plaintiff to amend the complaint in the particular mentioned, but it was declined and the court thereupon granted a nonsuit and rendered judgment dismissing the complaint. From that judgment this appeal is prosecuted. N
Counsel for appellant, in his brief, concedes that the deceased, at the time of his injury, was a trespasser upon the track of the railway company and that recovery can be had, if at all, only under the doctrine of the last clear chance. It
The refusal of counsel for plaintiff to amend the complaint and make it charge positively that the perilous position of the injured 'party was actually discovered in time to avoid the accident can be explained only upon the theory that he was uncertain whether the evidence would support such an allegation and, if it did not, he chose to avail himself of the supposed duty of defendants to make discovery and their breach of that duty. But plaintiff has no such right of election, for defendants could not be charged with negligence in failing to make discovery under the facts of this ease.
Actionable negligence arises only from a breach of legal duty
Counsel for appellant insists that the sufficiency of this complaint is established and further discussion of the subject fore
The complaint in the instant case does not disclose that the defendants owed to Thomas Carter Stricklin any primary duty, and since it fails to allege that his perilous position was actually discovered in time to avoid striking him, it fails to state a cause of action, and the trial court did not err in its ruling.
The judgment is affirmed.
Affirmed.