12 Mont. 44 | Mont. | 1892
Lead Opinion
This is an appeal from the judgment and order of the court overruling the motion for a new trial. The judgment was entered on the verdict of the jury for the plaintiff for the sum of two thousand five hundred dollars, as damages for personal injuries alleged to have been sustained through the neglect of a servant of defendant, a street railway company.
The following facts appear to have been proved by a fair preponderance of testimony: About three o’clock in the afternoon of January 23, 1890, a car drawn by two horses was being driven on defendant’s track to the south of Main Street, in the city of Helena. The driver was a boy about fifteen and a half years old, who lacked the strength needful for this employment, and was working temporarily in the place of another. At this time the horses were trotting at the rate of seven miles per hour, which was a violation of an ordinance-
What principles of law are applicable to a case of this nature? The appellant maintains that the plaintiff did not exert a proper degree of diligence, and was guilty of contributory negligence; that the driver performed promptly and faithfully all his tasks; and that his injuries complained of were caused by this act of the bystanders, for which the company was not responsible. During the trial a motion for a nonsuit was submitted and overruled. The questions raised by the appellant are embraced within the general rule that brings them within the province of a jury. In Schierhold v. North Beach & M. R. R. Co. 40 Cal. 447, the court said: “ The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find.....It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury, and pass upon the facts; and the nonsuit could only be granted in such cases where the evidence of the misconduct on the part of the injured party is so clear and irresistible as to put the case
In Newcomb v. Boston Protective Department, 146 Mass. 604; 4 Am. St. Rep. 354, the court said: “ What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case; and such it has been held to be in many cases like the one before us.” Other cases to this effect are cited in the above and the following authorities, which have been consulted in pursuing this investigation: Jamison v. San Jose etc. R. R. Co. 55 Cal. 593; Franklin v. Southern Cal. etc. Road Co. 85 Cal. 70; Massoth v. Delaware etc. Canal Co. 64 N. Y. 532; McClain v. Broolkyn City R. R. Co. 116 N. Y. 467; Wells v. Railroad Co. 12 N. Y. Supp. 67; Langhoff v. Milwaukee etc. Ry. Co. 19 Wis. 489.
What were the respective rights of appellant and respondent? In Schierhold v. North Beach & M. R. R. Co. supra, the court said: “ The drivers of street cars, through a densely populated city, ought always to have their teams under their immediate and absolute control, and are bound to drive in such a manner, if possible, as to injure no one.”
Messrs. Shearman and Eedfield, in their treatise on Negligence, say: “But inasmuch as the injuries which are caused by a railroad car are more serious than those inflicted by most other vehicles, it seems that a greater degree of care should be required of car drivers than of most other drivers. They are bound to watch persons on the track, or approaching the same, and to stop in the shortest time possible, so as to avoid coming into collision with them.” (Vol. 2 [4th ed.], § 462.)
In Moebus v. Herrmann, 108 N. Y. 352; 2 Am. St. Rep. 440, the court said: “A person on foot has, however, a right to cross the street where he pleases; and the inquiry is the same, whether, under the circumstances in any given case, he does so with due caution. .... The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad, to look both ways, does not, as a matter of law, attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances. In the former case, there
In Wright v. Malden etc. R. R. Co. 4 Allen, 290, the court said: “The exception taken to the admission in evidence of the city ordinance regulating the rate of speed of the defendant’s cars cannot be maintained. All persons traveling in the street would have a right to expect the ordinance to be observed, and to govern themselves accordingly.”
In Hanlon v. South Boston etc. R. R. Co. 129 Mass. 311, the court said: “There'was evidence that the car which struck the plaintiff was driven at a speed prohibited by an ordinance of the city; .... and the jury were told, that if they were satisfied that the rate of speed exceeded that allowed by the city ordinance, such violation of the ordinance would be evidence, but not conclusive evidence, of negligence.” This instruction was approved, and the case was affirmed in Newcomb v. Protective Department, supra. These views are announced in other cases. (St. Louis etc. R. R. Co. v. Dunn, 78 Ill. 201; Faber v. St. Paul etc. Ry. Co. 29 Minn. 467; Liddy v. St. Louis etc. R. R. Co. 40 Mo. 520; Keim v. Union Ry. & Transit Co. 90 Mo. 321.)
The instructions of the court, which covered fully every issue, are in accord with the foregoing authorities. The jury were instructed that the plaintiff must prove the negligence of defendant by a preponderance of evidence, or he could not recover. A satisfactory definition was given of “negligence” and “ contributory negligence.” The fifth, sixth, and seventh instructions were as follows:—
“ 5. A man in attempting to cross a thoroughfare in a city is bound to exercise reasonable care and caution, so as to avoid injury; and, on the other hand, it is the duty of a street car company so to conduct its business and run its cars as to avoid, as far as practicable, by the exercise of ordinary prudence and caution, doing injury to pedestrians. The driver of a street car should keep safe control of his team, and his position should be such as to enable him to readily apply his brake. He should run at a reasonable rate of speed, and be vigilant in observing the track to the end that collisions may be avoided;
“6. To entitle the plaintiff to recover in this suit, it must appear from the evidence that the injury complained of was occasioned by the want of attention, carelessness, or negligence on the part of the defendant or its servants, as charged in the complaint, and was not simply the result of an accident; and if the jury believe, from the evidence, that the injury resulted from an accident which could not have been foreseen or guarded against by the exercise of ordinary and reasonable care and prudence on the part of the defendant, then the plaintiff cannot recover, and the jury should find for the defendant.
“ 7. The rule of law is that a person is liable only for those consequences which flow naturally and directly from his acts, or which he could have foreseen or reasonably anticipated as the result of his conduct. Therefore, in this case, if the jury believe from the evidence that the plaintiff was struck down by the defendant’s car, and that in endeavoring to extricate him therefrom the persons so endeavoring had the car slip from their hold, whereby the car fell upon the plaintiff, and so caused the injury complained of herein, then the defendant is not liable for such consequence, and the jury should find for the defendant. But if you find from the evidence that he was struck down by defendant, acting negligently, through its servant, as defined in these instructions, or if you find that the plaintiff was injured by defendant’s negligence in not stopping its car sooner than it did after plaintiff was struck down, then the defendant would be liable in damages to plaintiff.”
We have quoted these instructions because they express in a lucid and impartial style the law which should be applied to the evidence in the case. The jury decided by their verdict that the plaintiff used reasonable care and caution in trying to cross a public street upon this occasion; that the car was moving at a greater rate of speed than is allowed by the ordinance of the city of Helena; that the driver was not a suitable person; and 'that through the negligence of defendant the plaintiff had sustained serious injuries. We are of opinion that there was ample testimony to justify the conclusion of the jury.
Dissenting Opinion
(dissenting). — This action is for damages sustained by plaintiff, alleged to be caused by defendant negligently striking plaintiff with its horses and street car, throwing him upon the ground, running against him with the car, and dragging him upon the frozen ground. Plaintiff had verdict and judgment for two thousand five hundred dollars. A motion for a new trial was denied. From this order and the judgment the defendant appeals. I will state the facts- and discuss the law together.
The plaintiff undertook to cross Main Street, from west to east, in the city of Helena, about 2:30 p. m. Defendant’s street car was coming up the street, and up a slight grade — about a water grade — going south. The car was running at about seven miles per hour. On the west side of the car was another vehicle, going in the same direction. The evidence is uncertain Avhether it was a baggage wagon or a hack. I will call it a baggage wagon for the sake of description. When the accident occurred the baggage wagon horses were in advance of the car horses, about sis or eight feet, and betAveen the baggage wagon and the car Avas a space of about three feet. There is some evidence that, at the same time, another vehicle, called by one of the witnesses a “Democrat wagon,” was passing north, on the east side of the street and about opposite the baggage Aragon. This is the testimony of one Arlington, a hack driver, who was sitting on the seat of his hack, which was standing on the side of the street. His opportunity for observation was as good as, if not better, than that of any of the witnesses. Other Avitnesses testified as to the presence of this Democrat wagon. Others did not see it. But all agree as to the baggage wagon going south on the west side. Plaintiff passed in front of the baggage Avagon, and directly onto the car track. He passed rapidly before the baggage wagon. One witness says he jumped over or ran over in front of it. Plaintiff himself says: “I had plenty of time, I thought, and passed
There is a great amount of testimony as to how quickly a horse car could be stopped. The minimum testified to was eight feet with a dry rail, and all the conditions favorable. The evidence is conflicting as to whether the rail was dry or wet. The testimony is voluminous as to whether, by the exercise of due care, the car could have been stopped in timé to prevent shoving the plaintiff on the ground. But that portion of the evidence as to shoving plaintiff^ I shall not consider at this moment.
For the purpose of applying the law, as I conceive it to be, to the facts, the accident is divisible into two periods: (1) The knocking down of plaintiff; and (2) the shoving him in front of the car. The facts as to the first period I have fully stated, and will now consider them in connection with the law.
But there is a modification of this rule, or perhaps rather a corollary thereto, which is not inconsistent with the general principle. In Kennon v. Gilmer, 4 Mont. 433, the action was for damages for injuries occurring in a stage-coach accident. The complaint set forth negligence in defendant in not .providing suitable and safe horses and a competent driver, by reason of which the horses became unmanageable, “one of the same jumping and throwing itself on the pole of the coach, thereby breaking the same, was thrown and placed in such a condition as to imperil the safety of plaintiff. So far the complaint sets forth a state of facts upon which the plaintiff could have relied if the injury complained of had happened. But it will be observed that this was not the case. The complaint continues: ‘And to render it apparently unsafe for plaintiff to longer remain on said coach; that he, being actuated by just fear of bodily injury by longer remaining thereon, jumped from said coach, and, in so doing, one of plaintiff’s legs was fractured, bruised, broken,’ etc. Thus the plaintiff declares that the proximate cause of the injury he sustained was his own action. . . . ; We think this the true rule, and that plaintiff, having asserted that the proximate cause of his injury was from his own act, he should then be held to prove that in thus acting he did exercise that degree of care and prudence that a reasonable person would have done in like circumstances. This is nowhere stated in the complaint, and we are left to conjecture as to that
The ruling in Kennon v. Gilmer was made upon a demurrer to the complaint. In the case at bar the question arises upon the evidence. Appellant contends that it is the rule that if it appears from plaintiff’s evidence that the injury was proximately brought about by plaintiff’s act or contributory negligence, then the burden of proving contributory negligence is shifted from defendant, and plaintiff must show himself to be free from such contributory negligence. If the doctrine of Kennon v. Gilmer is correct, the appellant’s conclusion necessarily flows therefrom; for if a complaint would be defective in not alleging plaintiff’s due care, after it had alleged that his own act was the proximate cause of the accident, then, on the same principle, if plaintiff’s evidence showed that his own act was the proximate cause of the injury, or if his evidence, as he presented it, showed that his contributory negligence was the cause of the injury, then he must be held to prove that he exercised due care, or that his seeming contributory negligence was not such in fact.
As the opinion in Kennon v. Gilmer gives but a meager citation of authorities, and the question is of importance, I will notice the decided cases more at length than they appear in that decision.
Mr. Beach, in his work on Contributory ^Negligence, says (§ 157) that it is a rule that contributory negligence is a matter of defense in the States of Alabama, California, Georgia, Kentucky, Kansas, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, Nebraska, Ohio, Pennsylvania, Bhode Island, South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colorado, and in England and the United States Supreme Court. To this list, Shearman and Bedfield add Arizona, Oregon, and the Territory of Dakota. As above noticed, Montana belongs in the same category. Mr. Beach further remarks: “But in all those jurisdictions where contributory negligence is held a matter of defense, whenever the plaintiff’s own case raises a presumption of contributory negli
Mr. Thompson, in his work on Negligence, says: “In those States where the doctrine obtains that contributory negligence on the part of the plaintiff is a matter of defense, if his case raises an inference of negligence on his part, he must, in order to make out a prima fade case, show that he was guilty of no negligence. (Vol. 2, p. 1178.) These remarks Mr. Lawson, in his work on Eights and Eemedies, cites with approval. (Vol. 3, p. 2144.) To the same effect are Shearman & Eedfield on Negligence, § 108, et seq. These authorities cite voluminously from the States named. Appellant has placed in his brief a large number of authorities, which I have examined with interest, and to which I refer, without reciting them at this place.
I do not cite from the few courts holding the doctrine of comparative negligence, which doctrine has obtained but a slight footing outside of the Supreme Court of Illinois, where it originated, nor from the courts that have held that the absence of contributory negligence is a matter of proof for the plaintiff; for the cases from these courts stand upon a theory of the matter other than that adopted in Higley v. Gilmer, supra.
But the States that have held the doctrine that we do, that contributory negligence is a matter of defense, have also held that if the plaintiff’s case, as he presents it, raises a legitimate presumption that the contributory negligence of plaintiff was the proximate cause of the injury, he must establish his freedom from such appearing contributory negligence, or he has not made out his case.
And logic and reason are with the authorities; for, if con-
Now as to the facts of the case at bar, considering first only what I have called the “first period” of the accident, the knocking down of the plaintiff, which I have described above. Was the proximate cause of the accident, in this respect, the negligence of defendant, or the act of plaintiff?
There is much evidence as to the possibility of stopping the car. The shortest distance given is eight feet, with a dry rail and all the conditions favorable. Whether the rail was wet or dry is not certain. But when the plaintiff first saw the horses and the car the horses were right onto him. This was when he was first seen by the driver, when he jumped out from in front of the baggage wagon horses. It does not appear that the driver could have seen him before this time. The driver stood upon the platform of the car. If plaintiff could have seen the car beyond the baggage wagon, as it appears he could, he would have seen the top part of the car. But the driver was not on top, but down on the platform; and, because plaintiff could have seen the top of the car, it does not follow that the driver, down on the platform, could have seen the plaintiff. The ordinance of the city forbade driving a street car faster than six miles per hour. The evidence on behalf of plaint
So much for the acts of defendant. Now as to the act of plaintiff. He crossed rapidly, or ran or jumped in front of a rapidly moving vehicle running parallel with the car. He says that he did not see the car. But he says that he did not look. He says that he thinks that he could have seen the car if he had looked, and that the car was larger than the intervening vehicle. If this is true, he could have seen the car if he had looked. The day was clear. Plaintiff was in the possession of his senses. He was upon a city thoroughfare.
Defendant moved for a nonsuit, which motion was denied. The motion was upon the ground “that the testimony introduced in behalf of the plaintiff shows that the accident or injury
If the accident had consisted simply in knocking plaintiff down, as above described, and under the circumstances detailed, and had stopped at that point, I should be of opinion that on such evidence, and the lack of evidence of care by plaintiff, the motion should have been granted. But that was not the end of the accident. The “second period,” as I have called it, was the shoving of plaintiff before the snow-scraper and wheel of the car. After plaintiff came against the snow-scraper, it cannot be contended that he was guilty of any contributory negligence as to what thereafter occurred, or that any act of his after he was down caused him to be shoved on the track, whereas it was contended by plaintiff in his evidence, on the trial, that even if there were no evidence that defendant’s negligence was the cause of the original striking down of plaintiff, and even if the cause of his being struck down was his own act, yet that by the exercise of due care and skill, and the strength of a competent driver, the car could have been stopped, if not in time to prevent striking plaintifij yet in time to avoid shoving him over the ground. On this point the evidence was extensive. In fact the evidence as to the possibility of stopping the car was upon this point, and not upon the question of stopping in time to avoid the knockdown. ,
Upon the question whether defendant’s alleged carelessness and negligence caused plaintiff to be so shoved on the ground, I am of opinion that the evidence, as it stood, was sufficient to go to the jury. It is not necessary to review it. I have examined it carefully. I say nothing as to its weight, but I cannot hold that it is perfectly clear that there was no negligence of the defendant in this respect; and if not so perfectly clear, as I have discussed this question above, the matter was for the jury, and should not have been taken from the jury by the granting of a motion for nonsuit, as appellant insists should have been done. Appellant’s contention as to the law of contributory negligence in this respect goes to an extreme. Carried to its legitimate conclusion, it is this: That if the inception of an accident is by the plaintiff’s own act or contributory negligence, then the defendant is freed from all exercise of care, from all
The Supreme Court of Illinois said, in Chicago etc. R. R. Co. v. Still, 19 Ill. 499; 71 Am. Dec. 236: “Neither has the right, because the other has omitted to use care, to cease the use of efforts on his part to avoid occasioning injury to the other. That would be to permit the party guilty of the first negligence to be wantonly killed by the other party.”
These cases put the doctrine strongly, and the Maryland case upon an aggravated state of facts, but the doctrine is correct. Shearman and Eedfield on Negligence, section 99, remark, in discussing the leading case of Davies v. Mann, 10 Mees. & W. 546, and the cases which have reviewed that case: “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed.” (See, also, 2 Thompson on Negligence, p. 1157, n; 8, and 4 Am. & Eng. Encycl. of Law, p. 75, n. 2.) These authors cite innumerable decisions, and my examination of the authorities leads me to conclude that their text is fully sustained. See, also, cases cited in respondent’s brief (paragraphs 2, 3, and 4), in all of which, wherein the principle under discussion is considered, the views above expressed are sustained.
The authorities cited by appellant are not in conflict with the views above expressed.
The doctrine of the law, as I am enabled to understand it, is that, although the inception of the accident was attributable to plaintiff’s own act or contributory negligence, yet if after-occurring negligence of the defendant, independent of the inception of the accident, works an injury to plaintiff, and if plaintiff’s acts after the initiation of the accident do not contribute to the
But I am of opinion that the court did commit error in the instructions by which the case was submitted to the jury. The court said, in instruction No. 3, among other things: “The burden of proving contributory negligence in this case rests upon the defendant,” and in instruction No. 7 : “If you find from the evidence that he (plaintiff) was struck down by defendant, acting negligently, through its servant, as defined in these instructions, or if you find that the plaintiff was injured by defendant’s negligence in not stopping its car sooner than it did after plaintiff was struck down, then the defendant would be liable in damages to the plaintiff,” and in instruction No. 1: “If you find from the evidence that the plaintiff may have contributed, and did contribute, to the injuries he received, by attempting to cross the street,” etc. But, as I have above observed, the burden of proving contributory negligence as to the first period of the accident was not upon the defendant, and the portion of instruction 3 quoted was therefore error.
And when we notice the portions of instructions 1 and 7 quoted, and the instructions as a whole, we observe that the court thereby submitted to the jury the whole facts of the accident— both the knocking down of the plaintiff, and the injuries alleged to have been caused thereby, and also the shoving him before the car. It was thus left to the jury to determine whether the defendant negligently knocked plaintiff down, and thereby injured him, as well as whether it injured him by
The case should have been submitted to the jury by excluding from their consideration, as an element of their verdict, the alleged negligence and injury occurring in striking down the plaintiff. Evidence of all these facts was of course competent in the case as part of the res gestee, but was not matter to be considered by the jury, either as an element to determine whether plaintiff was negligently injured by defendant, or to determine the amount of the damages to which he was entitled, if any. All these matters the jury considered; that is to say, they were left to them for consideration; and it is impossible to know how much weight there was with the jury of the matter which was improperly submitted to them. The subject should have been controlled by appropriate instructions.
In accordance with these views, I am of opinion that the order denying the new trial and the judgment should be reversed and the case remanded, with directions to the District Court to grant a new trial.