Armitage v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 28 June 1917 |
| Docket Number | 3787. |
| Citation | 166 P. 301,54 Mont. 38 |
| Parties | ARMITAGE v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Montana Supreme Court |
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.
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 consequent injury. The wire served the purpose of a connecting link between the chain and reach rod, and in our opinion is fairly comprehended within the general descriptive terms employed in the complaint. It is only when a particular claim or defense is unproved in its general scope and meaning that it can be said that there is a failure of proof, or a fatal variance, as it is commonly miscalled. Section 6587, Rev. Codes. The complaint is laboriously prolix, but the rules of pleading and practice are now very liberal. Section 6585, Revised Codes, provides:
"No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits."
2. It is contended that the verdict is against the law as declared in the court's instructions 8, 9, and 10. Instructions 9 and 10 relate to the burden of proof and to the quantum of proof necessary to warrant a verdict for the plaintiff. We are satisfied that there was sufficient evidence to justify a submission of the case to the jury, and that neither of these instructions was disregarded. Instruction 8 will be considered in connection with the next assignment.
3. This action was brought under the federal Employers' Liability Act of April 22, 1908 (35 Stat. at Large, 65, c. 149), and the Safety Appliance Acts of March 2, 1893 (27 Stat. at Large, 531, c. 196), March 2, 1903 (32 Stat. at Large, 943 c. 976), and April 14, 1910 (36 Stat. at Large, 298, c. 160). The last-mentioned act requires that all cars subject to the provisions of the act must be equipped with "efficient hand brakes." It is now settled beyond controversy that these Safety Appliance Acts impose upon the carrier an absolute duty (1) to equip its cars with the prescribed appliances, and (2) to maintain such appliances in a secure condition. St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061; Chicago, B. & Q. Ry. Co. v. United States, 220 U.S. 559, 31 S.Ct. 612, 55 L.Ed. 582; Delk v. St. Louis & San Francisco R. R. Co., 220 U.S. 580, 31 S.Ct. 617, 55 L.Ed. 590; Texas & P. Ry. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874. Under instructions of the court, the jury, in response to special interrogatories, found in effect that the reach rod and chain met the requirements of the federal acts and the regulations of the Interstate Commerce Commission, if the chain had been hooked over the end of the rod as intended; and it is now the contention of appellant that it did not violate the law, even though some one wrongfully connected the chain and rod by means of the baling wire, which would not withstand the force necessary to set the brakes. Counsel for appellant...
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