17 Mont. 426 | Mont. | 1896
We are of the opinion that the statement of this case about decides it. It is conceded that the use of a road engine for switching purposes was more hazardous than the use of a yard engine specially equipped for that purpose. Büt deceased knew all about that. He was thoroughly experienced in the business. He, with his crew, obtained the road engine, and went to work with it, without the precaution of putting a flat car in front, which he might have done, and which was within the scope of his own authority to do without orders from any one, and which was a precaution against the danger of using a road engine. The question of the deceased’s contributory negligence was fairly presented to the jury. It is contended by respondent that the contributory negligence of the deceased was so clearly established that the court should have taken the whole subject from the jury, and directed a nonsuit. We need not pass upon that question, as the verdict was for the defendant; but, the question of contributory negligence having been submitted to the jury, we are very clearly of the opinion that there was ample evidence to sustain the decision of this question of fact by the jury. It could not possibly be held in this case that the defendant was clearly free from contributory negligence. (Prosser v. Montana Cent. Ry. Co., ante, 372.)
We do not attach great weight, in this case, to the evidence of a general rule of the company forbidding the making of a flying switch, for the reason that in this case there was a special order to the deceased not to make a fly at this particular point, and not to uncouple while in motion at this point. Very sufficient reasons were given for this order, as may be seen by referring to the statement of facts above. Under all the facts of this case, it seems that the position of the deceased in mailing the uncoupling was an unusual and unnecessarily hazardous one. He could have stopped the locomotive and cars at the switch, as he was ordered to do, and have dropped the cars, by gravity,
The appellant’s counsel, in their brief, make some claim as to error in some of the instructions; but they do not pretend to point out in their brief wherein the error lies, and we have not been able to discover any. It is our opinion that the case was fairly presented to the jury upon the facts elicited by the testimony.' The judgment and order denying a new trial are affirmed.
Affirmed.
