De Atley v. N. Pac. Ry. Co.
| Decision Date | 22 November 1910 |
| Citation | 42 Mont. 224 |
| Parties | DE ATLEY v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Park County; Frank Henry, Judge.
Action by W. H. De Atley against the Northern Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Miller & O'Connor, for appellant. Wm. Wallace, Jr., John G. Brown, and R. F. Gaines, for respondent.
Near the easterly yard limits in the city of Livingston, during the month of July, 1908, the defendant railway company maintained four tracks, which for the purposes of this appeal will be designated the “Main,” “No. 1,” “Old,” and “Stock Yards” tracks. The “Main” track over which passenger trains were operated was the most southerly one. Some 66 feet north of this track was “No. 1” track. North of “No. 1” track was the “Old” track; and north of this the “Stock Yards” track. These four tracks crossed the public road within the city limits. On or about July 9, 1908, the plaintiff was hauling grain from his home north of Livingston, to the elevator in that city, using a four-horse team in his work, and it was necessary for him to cross the four tracks mentioned at the public road crossing referred to above. When plaintiff's team had crossed track “No. 1,” a passenger train moved rapidly from the west on the “Main” track, passed plaintiff's team, which became frightened and unmanageable, upset the wagon on which plaintiff was riding, with the result that plaintiff was crippled, his wagon damaged and one of his horses injured. At the conclusion of the testimony upon the trial of the case, the court granted defendant's motion for a directed verdict, and under instruction a verdict was returned in favor of the defendant and a judgment rendered and entered in accordance therewith. From an order denying his motion for a new trial the plaintiff appealed.
The complaint charges that the railway company was negligent in the following particulars: (1) In placing a number of box cars on track “No. 1” immediately west of the crossing, which cars obstructed the plaintiff's view of the “Main” track to the west; (2) in failing to give any warning signal as its passenger train approached the crossing; (3) in running its train at an excessively high rate of speed; and (4) in sounding the whistle of the locomotive drawing the passenger train, unusually loud as the train passed plaintiff's team. All these allegations of negligence were denied in the answer, and the defendant pleads affirmatively the defense of contributory ngligence. The motion for a directed verdict specifies as the grounds thereof, that plaintiff failed to prove all the concurring acts of negligence charged; that he failed to prove any act of negligence alleged, and that the evidence shows contributory negligence on plaintiff's part. The order sustaining the motion is general. In this court counsel for respondent railway company have not urged the defense of contributory negligence, but have insisted that the trial court's order is fully justified upon the other grounds of the motion.
1. It is insisted that the several acts of negligence are charged as concurrent, in the sense that proof of all of them is necessary to make out the plaintiff's case, but with this we do not agree. In attempting to show the causal connection between the acts of negligence charged and the injury to plaintiff, the complaint might have been much more specific, and we are not prepared to say at this time that proof of any one of the acts of negligence charged would warrant a recovery in plaintiff's favor; but we think that the allegations with respect to one or two of the negligent acts might have been omitted and the complaint still state a cause of action; in other words, that the several acts of negligence are not charged to be so far interdependent that proof of all is essential to make out a case. For instance: It cannot be said that the complaint makes the allegation with respect to the act of leaving the box cars on “No. 1” track essential to a complete statement of the cause which led directly to plaintiff's injury. The case of Forsell v. Pittsburgh & Mont. Copper Co., 38 Mont. 403, 100 Pac. 218,...
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