Boyd v. Great N. Ry. Co., No. 6367.

• Docket Nº: No. 6367.
• Citation: 84 Mont. 84
• Case Date: February 02, 1929

84 Mont. 84

BOYD
v.
GREAT NORTHERN RY. CO. et al.

No. 6367.

Supreme Court of Montana.

Feb. 2, 1929.

Appeal from District Court, Hill County; Charles R. Rose, Judge.

Action by Henry Boyd against the Great Northern Railway Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Victor R. Griggs, of Havre, for appellant.

W. L. Clift and R. H. Glover, both of Great Falls, and A. F. Lamey, of Havre, for respondents.

FORD, J.

This action was brought to recover damages for personal injuries received by plaintiff while employed as a member of a storehouse crew of defendant company, on account of alleged negligence. Defendants answered, denying the negligence charged, and alleging affirmatively that plaintiff assumed the risk and was guilty of contributory negligence. Issue was joined by reply. Upon the trial of the cause, and at the conclusion of plaintiff's testimony, defendants' motion for a nonsuit was sustained, and judgment entered accordingly. Plaintiff appeals from the judgment.

Defendants' motion for nonsuit was based upon the grounds: (1) That the complaint fails to state a cause of action; (2) of failure of proof of allegations of the complaint; (3) of assumption of risk; (4) of contributory negligence; and (5) that there is no causal connection shown between the lifting of an angle iron of the alleged weight of 400 pounds said to have resulted in the injury and the injury.

The complaint is almost identical with that in the case of Sorenson v. Northern Pacific Ry. Co., 53 Mont. 268, 163 P. 500, and alleges in substance, that, while plaintiff was in the employ of the defendant company, and under the immediate direction and control of the defendant Johnson, its foreman, whom he was obliged to obey, he was ordered and directed by Johnson, and it became and was his duty, with another employee, to lift the angle iron above referred to, and about 12 feet in length, and carry it a distance of about 100 feet, and place it upon a loading platform; that to lift and carry the same with reasonable safety required the services of at least four experienced, able-bodied, and strong men, which fact was well known to defendants, or should, by the exercise of ordinary diligence, have been known to them, but was not known to him; that it was the duty of the defendants to exercise reasonable care to furnish a sufficient number of men to lift and carry the angle iron, so that plaintiff would not be exposed to danger in the performance of his duty; that defendants failed to perform their duty in that behalf; that, knowing that at least four experienced and strong men were necessary for that purpose, they furnished only one man besides plaintiff to do the work; that plaintiff had never had any experience in lifting irons of the kind described, which fact was well known to defendants; that the shape of the angle iron made it difficult for one experienced in lifting to determine its weight, and that plaintiff, being inexperienced, was unable, by the exercise of due diligence, or at all, to determine, and plaintiff did not know at the time, its weight, or that two men were insufficient to carry the same with safety; that through the negligence of defendants in failing to furnish sufficient men or apparatus to carry the iron with reasonable safety, and while plaintiff was assisting in lifting and carrying the iron, he suffered the injuries complained of.

When plaintiff seeks to recover for actionable negligence, the complaint must allege: (1) That the defendant was negligent; (2) that plaintiff was injured; and (3) that the negligence charged was the proximate cause of the injury. Grant v. Nihill, 64 Mont. 420, 210 P. 914;Stones v. Chicago, M. & St. Paul Ry. Co., 59 Mont. 342, 197 P. 252;Barry v. Badger, 54 Mont. 224, 169 P. 34. The complaint must be liberally construed “with a view to substantial justice between the parties” (section 9164, Rev. Codes 1921), and the court must disregard any error or defect which does not affect the substantial rights of the parties (section 9191, Id.).

Measured by these rules, and for the reasons stated in Sorenson v. Northern Pacific Ry. Co., supra, we are of opinion that the complaint is sufficient.

The next question for determination is: Did plaintiff assume the risk of injury? Generally, the question of assumption of risk is one of fact for the jury to determine. This is true where the evidence is in such a condition that fair-minded men might draw different conclusions. When it furnishes ground for but one inference, it presents a question of law for determination by the court. Monson v. La France Copper Co., 43 Mont. 65, 114 P. 779;Anderson v. Northern Pacific Ry. Co., 34 Mont. 181, 85 P. 884; 18 R. C. L. 676; 39 C. J. 1178.

The general rule in cases of this character-“strain cases”-is that the employee is the best judge of his own...