138 P. 499 | Mont. | 1913
delivered the opinion of the court.
Action for personal injury. The plaintiff brought this action for injuries sustained by him while employed as a helper or laborer in the machine shop of the defendant Chicago, Milwaukee & Puget ■ Sound Railway Company on April 4, 1912. The amended complaint, after the usual allegation as to the ineor
The order granting a new trial was general in its terms, and, regardless of the reasons given by the court below for its ruling,
It appears that the plaintiff and other laborers were members of a wheel press gang at defendant company’s shop in Miles City, and on April 4, 1912, were engaged in moving the drive wheels of a locomotive from a tra'ck to a lathe, some thirty feet distant, for the purpose of truing up the wheels; that the wheels were very heavy, and it was necessary to block them in order to hold them stationary; that for this purpose they used short wooden blocks about two inches by six or eight inches, placed in front of and behind the wheels; that this blocking was required on account of the block of iron cast between two or four of the spokes of each wheel, called a counterpoise or balance; and that defendant Feeley was in charge of the lathe. The testimony is conflicting as to whether or not the work of moving the wheels by the wheel press gang on the occasion referred to was under the direction and supervision of defendant Feeley. Testimony was also given in regard to the appliances in use; but, as we view the case, it is needless to encumber this opinion with a recital thereof.
Plaintiff testified that they had brought the wheels from the track to the usual position in front of the lathe where they were
It is urged by plaintiff that the defendant railway company wras negligent in failing to provide reasonably safe appliances for doing the work, and that its failure to provide safer means than those in use at the time, to transfer the wheels from the track to the lathe, was the proximate cause of plaintiff’s injury. The wheels had reached a position in front of the lathe, and were blocked to prevent them rolling either forward or backward. It is apparent, as testified to by-plaintiff, that the accident could not have happened had the block not been removed from in front of the wheel. While the defendant railway company may have been negligent in failing to provide reasonably safe appliances for the plaintiff to do the work of moving the wheels—a question we do not now decide—yet such failure in
It is not every negligent act that gives a'cause of action; it is
Respondents insist that plaintiff assumed the risk of such an injury when he entered defendant company’s employ, and for that reason cannot recover in any event. It cannot be said that the .careless and negligent removal of the block of wood from under the wheel was one of the risks of the business assumed by the plaintiff. But respondents urge that plaintiff assumed the risk of injury resulting from the negligence of fellow-servants, and that, as the injury was the result of the negligence of a fellow-servant, plaintiff cannot recover. While it is true ■that plaintiff assumed the risk of injury from negligence of fellow-servants, under the evidence it cannot be said, as a matter of law, that defendant Feeley was the fellow-servant of plaintiff. W'e think there was sufficient conflicting testimony as to the character of the employment, the duties and authority of Feeley, to raise a question for the jury, and that this question should have been submitted to the jury under proper instructions. Upon another trial, should the jury find that Feeley was the fellow-servant of plaintiff, the verdict would necessarily be that the defendant company is not liable for plaintiff’s injuries. On the other hand, should the jury believe the plaintiff’s story and
The order granting a new trial is affirmed.
Affirmed.