Armitage v. Chi., M. & St. P. Ry. Co.

Citation54 Mont. 38
Decision Date28 June 1917
Docket NumberNo. 3787.,3787.
CourtUnited States State Supreme Court of Montana
PartiesARMITAGE v. CHICAGO, M. & ST. P. RY. CO.

54 Mont. 38

ARMITAGE
v.
CHICAGO, M. & ST. P. RY. CO.

No. 3787.

Supreme Court of Montana.

June 28, 1917.


Appeal from District Court, Gallatin County; Ben B. Law, Judge.

Action by W. O. Armitage against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals. Affirmed.


E. M. Hall, of Helena, and W. S. Hartman, of Bozeman, for appellant.

C. E. Carlson, of Bozeman, and Dunn & Carlson, of Albert Lea, Minn., for respondent.


HOLLOWAY, J.

On December 2, 1914, the defendant, an interstate carrier, brought its east-bound freight train No. 74 into the yards at Harlowton, placed it upon a side track, and cut off the locomotive. It was necessary to hold the cars by means of the hand brakes, and the plaintiff, head brakeman upon the train, in the discharge of his duties undertook to set the brakes upon car No. 61981, but the brake mechanism gave way and plaintiff was injured. He brought this action to recover damages and prevailed in the lower court. The defendant has appealed from the judgment and from an order denying its motion for a new trial. The specifications of error are presented in four contentions.

1. It is insisted that there is a variance between the allegations of negligence and the proof, which amounts to a failure of proof. It is charged in the complaint that the defendant “negligently, recklessly, and carelessly suffered, caused, and permitted the said braking appliance, and the chains, mechanisms, and fastenings thereon [on car 61981] to be and become defective, old, battered, worn, out of repair, broken, and weak, and made of insufficient and improper material,” and that this negligence was the proximate cause of plaintiff's injury. The evidence discloses that the car was equipped with hand brake appliances, consisting, among other things, of the brake staff, wheel, and ratchet, a chain attached to the staff, which passes over a pulley and back under the car to a reach rod, which in turn is attached to an equalizer lever. The front end of the reach rod is bent upward and back, forming a large hook, and the design of the equipment is that the chain shall be fastened to this rod by having the last link placed over the hook. It is the theory of plaintiff's case, supported by his testimony, that instead of the chain and rod being connected, as they were intended to be, the last link of the chain was not over and about the hook, but was lashed to the under side of it by means of some old, rusty baling wire, and that it was this wire which broke and caused plaintiff's fall and...

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11 cases
  • Gieseking v. Litchfield & Madison Ry. Co., 33850.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
  • Seibel v. Byers, 9710
    • United States
    • United States State Supreme Court of Montana
    • September 16, 1959
    ...... Armitage v. Chicago, M. & St. P. Ry. Co., 54 Mont. 38, 166 P. 301; White v. Chicago, M. & [P.S.] Ry. Co., 49 Mont. 419, 143 P. 561. The appearance of the ......
  • Kelley v. John R. Daily Co.
    • United States
    • United States State Supreme Court of Montana
    • May 10, 1919
    ......Armitage v. Chicago, M. & St. P. Ry. Co., 54 Mont. 38, 166 Pac. 301;White v. Chicago, M. & St. P. Ry. Co., 49 Mont. 419, 143 Pac. 561. The appearance of the ......
  • Kelley v. John R. Daily Co.
    • United States
    • United States State Supreme Court of Montana
    • May 10, 1919
    ...... shock the conscience, this court cannot substitute its. judgment for that of the jury. Armitage v. Chicago, M. & St. P. Ry. Co., 54 Mont. 38, 166 P. 301; White v. Chicago, M. & St. P. Ry. Co., 49 Mont. 419, 143 P. 561. The appearance of the ......
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