Badovinac v. Northern P. Ry. Co.

• Decision Date: 22 October 1909
• Citation: 104 P. 543,39 Mont. 454
• Parties: BADOVINAC v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

104 P. 543

39 Mont. 454

BADOVINAC v. NORTHERN PAC. RY. CO.

Supreme Court of Montana

October 22, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by J. D. Badovinac against the Northern Pacific Railway Company for personal injuries. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed and remanded.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

Mackel & Meyer, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The plaintiff recovered judgment, and the defendant has appealed from the judgment and from an order denying it a new trial.

The complaint alleges that plaintiff became a passenger upon defendant's train No. 6, bound from Butte to Chestnut that as the train approached Chestnut a brakeman on the train called the station; that the train slackened its speed, but did not stop; that plaintiff went out upon the platform, and was directed by the brakeman to jump from the moving train that it was dark and plaintiff could not tell that the train was running at a great rate of speed, and because he could not tell that the train was running at a great rate of speed, and because he relied upon the direction of the brakeman, he jumped from the moving train, and received the injuries of which he complains. The complaint also alleges that in fact the train was running at a much greater rate of speed than plaintiff had supposed at the time he jumped. The defendant entered a general denial, and also pleaded contributory negligence. Before answering, the defendant interposed a general demurrer, but by consent this was overruled, and we may now treat the case as though a demurrer had not been interposed at all.

The principal contention made by appellant is that the complaint does not state facts sufficient to constitute a cause of action. Respondent urges that such objection cannot be made for the first time upon a motion for a directed verdict. But there is not any merit in this position; for the objection that the complaint does not state a cause of action may be raised at any time, even in this court for the first time. Thornton v. Kaufman, 35 Mont. 181, 88 P. 796; Wyman v. Jensen, 26 Mont. 239, 67 P. 114. In this state it is a general rule that the plea of contributory negligence is an affirmative defense, and the burden of making it is upon the defendant. Nord v. Boston & Mont. Con. C. & S. Min. Co., 33 Mont. 464, 84 P. 1116, 89 P. 647. But to this well-established rule there is one exception, which is as well recognized as the rule itself. In Ball v. Gussenhoven, 29 Mont. 321, 77 P. 871, this court said: "If, however, the complaint shows "the proximate, or a proximate, cause of the injury to have been the act of the plaintiff, the complaint must also state his freedom from negligence in the doing of the act; otherwise the pleading is bad." And in Orient Ins. Co. v. Northern Pacific Ry. Co., 31 Mont. 502, 78 P. 1036, we also said: "The existence of contributory negligence need not be negatived in the complaint unless it appears from other allegations therein that the proximate cause of the injury was the act of the plaintiff." This rule of pleading was first announced by this court in Kennon v. Gilmer, 4 Mont. 433, 2 P. 21. In that case Kennon was a passenger upon a stage coach owned and operated by Gilmer and others. The horses attached to the coach became unmanageable and broke the pole of the coach. Kennon, becoming frightened, jumped from the moving vehicle and was injured. He brought an action to recover damages, and in his complaint, after charging negligence on the part of the defendants in failing to furnish suitable horses and a competent driver, alleged that, by reason of the facts already pleaded, the plaintiff was placed in such a position as to imperil his safety, "and to render it apparently unsafe for plaintiff to longer remain on said coach; that he, being actuated by just fear of bodily injury by longer remaining thereon, jumped from said coach, and, in so doing, one of plaintiff's legs was fractured, bruised, broken," etc. Of that complaint this court said: "Thus the plaintiff declares that the proximate cause of the injury he sustained was his own action." Upon considering the excuse offered by Kennon for his act in jumping from the coach, the court reached the conclusion that the facts stated by way of excuse were not sufficient to show that the plaintiff was not guilty of contributory negligence, and therefore concluded that the complaint did not state a cause of action.

In many respects the facts in the case at bar cannot be distinguished from those in Kennon v. Gilmer. Here, as...