Anderson v. N. Pac. Ry. Co.

Citation34 Mont. 181
Case DateApril 30, 1906
CourtUnited States State Supreme Court of Montana

34 Mont. 181

ANDERSON
v.
NORTHERN PAC.
RY. CO. et al.

Supreme Court of Montana.

April 30, 1906.


Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

Action by Harry Anderson against the Northern Pacific Railway Company and the Helena & Livingston Smelting & Reduction Company. Judgment for plaintiff. Defendants appeal. Affirmed as to smelting company; reversed and new trial ordered as to railway company.


Wallace and Donnelly, for appellant railway company.

McConnell and McConnell, for appellant smelting company.


T. J. Walsh and R. R. Purcell, for respondent.

HOLLOWAY, J.

Harry Anderson, the respondent, was a freight brakeman employed by the Northern Pacific Railway Company. In September, 1903, he was injured while in the performance of his duties, and brought this action to recover damages from the railway company and from the Helena & Livingston Smelting & Reduction Company, alleging negligence on the part of the defendant smelting company in constructing and maintaining, and on the part of the railway company in permitting the construction and maintenance of, a certain bridge or trestle over the track of the railway company at the smelting company's concentrator at Corbin, in Jefferson county. The bridge or trestle was used by the smelting company to load cars with ore and other products for shipment. It is alleged that this bridge or trestle was so low that an employé of the railway company could not pass under it while standing upon the platform of an ore car, and that neither the smelting company nor railway company erected or maintained telltales or other devices to warn employés of the railway company of the approach to such bridge or trestle. It is further alleged that this bridge or trestle was erected over a spur track operated by the railway company for the use of the smelting company; that on the day of the accident the defendant railway company operated a train on this spur track at the request of the defendant smelting company, and that, while the plaintiff was on one of the cars constituting the train, he came in contact with the timbers of the bridge or trestle, was knocked from the train, and severely injured. The defendant railway company denies any negligence on its part; denies that the spur track is upon its right of way, but alleges that it is upon property owned entirely by the defendant smelting company. It admits, however, that the spur track was constructed by the joint efforts of the railway company and the smelting company. The plaintiff's contributory negligence and assumption of risk are also pleaded. The defendant smelting company denies any negligence on its part; alleges that the spur track was constructed in part upon ground owned by the smelting company, and in part upon the right of way of the railway company, and that while it was built by the joint efforts of the two companies, the smelting company was fully repaid by the railway company, and that the railway company owns the spur entirely. The smelting company admits that it erected the bridge or trestle, but alleges that the span of the bridge or trestle, immediately over the roadbed or railway track is constructed as a drawbridge solely for the benefit of the railway company, and that the railway company has the exclusive control of such drawbridge. It also alleges that the plaintiff's injury was caused by reason of the brake on the last of the cars of the train being out of order through the negligence of the railway company. It also pleads the defenses of contributory negligence and assumption of risk. All the material allegations of these answers are put in issue by the replies. The plaintiff recovered judgment, and each defendant gave its separate notice of intention to move for a new trial, prepared its separate statement, and made its separate assignments of errors. How these matters were submitted to the district court does not clearly appear. The court's order is as follows: “In this cause court this day ordered that defendants motion for a new trial herein is denied.” The defendants gave a joint notice of appeal and only one undertaking on appeal.

After reciting the appeal from the judgment, the notice of appeal reads: “And also from an order made and entered in said court and cause on the 21st day of August, 1905, overruling defendant's motion for new trial in said action.” While a motion to dismiss the pretended appeal from the order denying a new trial has not been made, it is urged that such pretended appeal cannot be considered. The order of the court would seem to indicate that the defendants joined in the motion for a new trial; while the notice of appeal in the case indicates that only one defendant made such motion, and, if that is true, there is not anything to indicate which defendant did so. We therefore, of our own motion, dismiss the pretended appeal from the order enying a new trial and will consider only the joint appeal from the judgment.

On such appeal counsel for the respondent urge that the appellants must join in their assignments of error, and that this court cannot consider alleged errors not common to both appellants. The authorities cited in support of this contention, however, are not directly in point. They are from states where the method of review is by writ of error and refer to cases where joint assignments of error were made. This question has not been before this court directly, but we have heretofore proceeded upon the assumption that proper practice might warrant the affirmance of a judgment as to one joint appellant and its reversal as to another. Cook v. Gallatin R. Co., 28 Mont. 340, 72 Pac. 678;City of Butte v. Cook, 29 Mont. 88, 74 Pac. 67;Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994. In the absence of any authorities directly in point to the contrary, we prefer to follow the rule heretofore adopted, or which seems to be implied by the position which this court has heretofore assumed. We, however, adopt the suggestion of counsel for respondent to this extent: That one joint appellant will not be permitted to assume a position in this court antagonistic to his other joint appellant. It was evidently one purpose of section 1721 of the Code of Civil Procedure, in permitting any aggrieved party to appeal, to enable one defeated party to urge an antagonistic attitude as against another defeated party, as well as against the successful litigant, by a separate appeal. But it would seem entirely inconsistent with proper practice to permit one of two joint appellants to assume a position antagonistic to his joint appellant. In so far as the position of either of these appellants is antagonistic to the other, it will not be considered.

The railway company assigns as errors the giving of instructions 4, 5, 7, 8, 9, 11, and 13 respectively. The defendant smelting company assigns as errors the giving of instructions 6, 8, 10, and 13 respectively. As the smelting company does not predicate error upon the giving of instructions 4, 5, 7, 9, or 11, it is presumed to be satisfied with them. Counsel for the smelting company do not discuss the assignments of error predicated upon the giving of any instructions. In their brief they say: “We will not enter into the discussion of the errors committed by the court in the instruction given to the jury, as this has been so ably done by counsel for the defendant railway company.” But counsel for the railway company do not discuss the giving of instructions 6 or 10, and therefore these assignments are not discussed by any one, and under the well-established rule of this court and other appellate courts, assignments not argued will be deemed waived. We therefore eliminate from consideration the assignments predicated upon the giving of instructions 6 and 10.

The common errors assigned are (1) the refusal of the court to grant a nonsuit; (2) the giving of instruction No. 8; and (3) the giving of instruction No. 13. Applying the well-recognized rule, that upon a motion for nonsuit those facts will be deemed proved which the evidence tends to prove, it appears that the plaintiff had never been over the Boulder Branch of the Northern Pacific Railway but three or four times prior to the day of this accident; that he had never been on this spur at Corbin before that day; that the smelting company had loaded four cars with concentrates, one of which cars stood immediately under the bridge or trestle, and the other three beyond it. The superintendent of the concentrator requested the train crew, of which this plaintiff was a member, to take these loaded cars from the spur for shipment to the smelter at East Helena. The locomotive was detached from the train on the main line and backed in on the spur nearly to the car beneath the bridge, the entire train crew riding. This plaintiff then stepped down from the locomotive, walked back under the bridge or trestle and, as was his duty, removed blocks from under the wheels of the cars, saw to it that the cars were coupled together, that the air was properly coupled and the angle cocks properly turned. He walked back to the last car, mounted upon the platform of that car to release the ordinary hand brake. The bridge is about 8 feet or 8 feet 2 inches above the track. The cars in use were the ordinary gondola cars, the platforms of which are from 3 1/2 to 4 feet above the track. The plaintiff is a man about 5 feet 9 inches in height. The plaintiff testifies that he looked down in going back from the locomotive in performing the duties of his office. About the time plaintiff undertook to release the brake on the rear car, the train commenced to move, and by the time the car upon which he was standing reached the bridge, the train was moving at a rate of from 8 to 10 miles an hour. The brake did not respond readily to plaintiff's efforts and, while engaged in attempting to release it and while his attention was absorbed in this duty, he was struck by the bridge and injured. There...

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