Boyle v. Chicago, M. & St. P. Ry. Co.
| Citation | 199 P. 283,60 Mont. 453 |
| Decision Date | 27 June 1921 |
| Docket Number | 4406. |
| Parties | BOYLE v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; Asa L. Duncan, Judge.
Action by Catherine Boyle against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.
Harry H. Parsons, of Missoula, and Edward Horsky, of Helena, for appellant.
W. L Murphy, of Missoula, and Gunn, Rasch & Hall, of Helena, for respondent.
Appeal from an order denying a new trial. This action was for damages on account of personal injuries alleged to have been sustained by plaintiff while an employé of the defendant. In the course of her employment, it was her duty to move certain levers which governed the action of semaphores on the railroad line, and while moving one of them she alleged that by defendant's negligence it broke, and she was thrown to the floor, sustaining the alleged injuries.
Among other allegations, the complaint states:
"That said lever at said times, and for a long time prior thereto, was cracked, defective, weak, and dangerous; that defendant had negligently and carelessly neglected and omitted to responsibly inspect the condition of the same that a reasonable inspection would have disclosed the said condition of the same; that defendant likewise negligently and carelessly failed and omitted to warn or give notice to plaintiff of its said condition, and likewise negligently and carelessly allowed and permitted the same to remain in said condition for a longer period of time prior to the actual breaking thereof; that defendant knew of the said condition of said lever, or by the exercise of reasonable care and caution on its part would have known thereof, but that same was wholly unknown to and unsuspected by this plaintiff, and by the exercise of due care on her part could not have become known to or discovered by her."
A general demurrer was overruled. At the trial, before any testimony was given, defendant objected to the introduction of any evidence, basing its objection on the insufficiency of the complaint. The objection was overruled. Defendant's motion for a nonsuit on the ground that the complaint did not state facts sufficient to constitute a cause of action, and on the further ground that the evidence did not show, nor tend to show, negligence on its part, was denied, and its motion for a directed verdict on the same grounds at the close of all of the testimony was granted. Judgment was entered for defendant on the verdict. Before the court had ruled on the latter motion, plaintiff sought leave to amend the complaint by making definite the time during which defendant knew, or should have known, of the defective mechanism. The motion was denied. Since the action of the court in this case in denying the motion for a new trial must be affirmed on the insufficiency of the complaint, it is not necessary to consider the evidence.
Under the settled law of this state the complaint is fatally defective, in that the time alleged during which defendant's knowledge of the defect in the lever, or opportunity to know, is not definite, and does not come within the requirements of 6532 R. C.
"The allegation is but a conclusion which the pleader has left, unaided by the statement of any specific fact to enable one to determine what the length of time was." McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893.
In fact, as to the sufficiency of the complaint, it seems conceded by plaintiff that it is defective, as all of the arguments and citations in the brief are addressed to the court's action in denying the application to amend.
The defendant protected its position by demurrer and objection to the introduction of any evidence under the complaint, in compliance with section 6535, R. C., and as has been well stated in Ecclesine v....
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