Bracy v. Great Northern Ry. Co., 9826

• Decision Date: 19 August 1959
• Docket Number: No. 9826,9826
• Citation: 343 P.2d 848,136 Mont. 65
• Parties: Nathaniel H. BRACY, Plaintiff and Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 848

343 P.2d 848

136 Mont. 65

Nathaniel H. BRACY, Plaintiff and Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a corporation, Defendant and Appellant.

No. 9826.

Supreme Court of Montana.

Aug. 19, 1959.

As Amended on Denial of Rehearing Sept. 23, 1959.

Weir, Gough, Booth & Burke, Helena, H. D. Carmichael, Butte, for appellant.

Edwin S. Booth, Helena, argued orally for appellant.

Shone & Sullivan, Butte, for respondent.

A. G. Shone, Butte, argued orally for respondent.

ANGSTMAN, Justice.

Defendant appeals from a judgment rendered on a verdict in the sum of $27,500 for personal injuries sustained by plaintiff while employed as a fireman, but working as an engineer, on a switch engine. The action is one under the Federal Employers' Liability Act. 45 U.S.C.A. Secs. 51-59.

Plaintiff's amended complaint alleges the accident occurred while the railroad crew was making up a train in the defendant's yards at Hillyard, Washington. It was alleged that the accident occurred at night, and while plaintiff was pushing cars westward with the engine; that the operation was controlled by lanterns in the hands of switchmen who gave signals designed to control the movement of the engine; that during the course of these operations there was a violent and sudden collision between the train which plaintiff was operating and cars that were stationary on the track; that the impact caused the injuries to plaintiff complained of; that the negligence was attributed to switchmen who failed to give the signal that there were cars on the track and who were alleged to have been negligent in other particulars; that there were three cabooses between the engine driven by plaintiff and the cars which he was pushing on the track, and these obstructed his view so that he had to rely solely on the signals given by the switchmen.

Defendant's first contention is that the court erred in denying its motion to dismiss the complaint upon the ground that the action was not brought in the proper or convenient forum in that all the witnesses reside in the State of Washington where the accident occurred. Defendant relies on the doctrine of forum non conveniens. The motion was made before trial, renewed at the beginning of trial, and again at the close of the case. The several motions were denied.

In its order denying the motion, the court expressed doubt as to whether the doctrine of forum non conveniens has any application in Montana, but stated in substance that even though it is proper to apply the doctrine in this state, the facts in the instant case do not warrant its application here.

Defendant asks us to settle the question as to whether the doctrine has application in this state. We see no purpose in resolving this academic question here. If it does apply, the court cannot be placed in error for not granting the several motions. Admittedly, whether the doctrine should be applied in a given case is a question resting in the discretion of the trial court. Cullinan v. New York Cent. R. Co., D.C.N.Y.1948, 83 F.Supp. 870; Mooney v. Denver & R. G. W. R. Co., 118 Utah 307, 221 P.2d 628.

Affidavits of defendant show plaintiff to be a resident of Spokane, Washington, which is near the place of the accident at Hillyard, Washington; that it would be inconvenient and expensive for defendant to try the case in Butte, Montana; that the jury would be precluded from viewing the scene of the accident; that witnesses could not be compelled to attend the trial in Montana by process of court; and that both the state and federal courts at Spokane, Washington, were available with no undue delay.

Plaintiff's counter-affidavits were to the effect that all witnesses were employees of defendant and could be brought to Montana for the trial; that because the doctors treating plaintiff at Spokane would not inform plaintiff of his injuries it was necessary for plaintiff to engage a doctor at Butte and have X rays taken; that such medical witnesses were necessary as key witnesses and could not be compelled to attend a trial in Spokane; that a jury view of the scene of the accident would not be proper since it happened at nighttime; and that plaintiff has photographs showing the yards of defendant where the accident occurred.

There is no basis for the contention that the trial court abused its discretion in denying the motion.

Defendant contends that the court erred in admitting testimony relative to mortality and annuity tables and in giving its Instruction numbered 28 having to do with the effect of these tables. It is conceded that Instruction 28 was proper if the mortality and annuity tables were properly in evidence, hence, the only point involved on this subject is this: Was the evidence such that the case called for use of mortality and annuity tables? The test to be applied as to whether the case is one justifying the use of evidence of mortality and annuity tables is this: Is there substantial evidence in the record which would support a finding by the jury that there is permanent disability? Cornell v. Great Northern R. Co., 57 Mont. 177, 187 P. 902; Ralph v. MacMarr Stores, 103 Mont. 421, 62 P.2d 1285, and compare Gilman v. G. W. Dart Hardware Co., 42 Mont. 96, 111 P. 550; and McNair v. Berger, 92 Mont. 441, 15 P.2d 834.

There was medical testimony as to plaintiff's physical condition and that plaintiff was partially and permanently injured. A part of the evidence bearing on that point is referred to later in this opinion. The fact that plaintiff has worked with reasonable regularity since the accident does not militate against the claim that he has been permanently, partially disabled.

Defendant contends that it was error to give Instruction 27 reading:

'You are instructed that plaintiff had a right to assume that his fellow employees would obey the rules of the company and perform their duty thereunder.'

Defendant's contention is that the evidence does not show there was any such rule. The record shows the following:

The switch foreman employed by defendant, working with the crew with which plaintiff worked, testified:

'Q. And when passing through the Yard at the railway company, is it not the duty of the Conductor and all of the Brakemen to station themselves where they can observe and transmit signals? A. Yes, sir.

'Q. That's a rule of your company, is it not? A. Yes, sir. * * *

'Q. And if the rule says that they are there with the Conductor for the purpose of observing and transmitting signals, do you comply with that rule? A. Yes Sir.'

Again he testified:

'Q. Now, isn't it a rule of your Company, that before moving cars or engine in the Yard or on the Yard tracks it must be known that they can be moved with safety? A. Yes.

'Q. And it is the Conductor's duty to know that they can be moved with safety? A. Yes.

'Q. So, on this night it was your duty to know that this train could be moved with safety? A. Yes.

'Q. And that was according to the rules? A. Yes.

'Q. Is that right? A. Yes. * * *

'Q. Now, I will ask you if it isn't a rule of your Company that when pushing a train of cars the disappearance from view of the trainman's light by which signals are given must be regarded as a stop signal? A. That's correct.

'Q. Isn't that correct? A. Yes.

'Q. Do you always obey that rule? A. Yes, sir.'

This evidence was sufficient for the jury to predicate a finding that the Company did have rules governing its operations and justified the giving of Instruction No. 27.

Defendant contends that the court erred in giving Instruction No. 12 over objection that it omits the question of contributory negligence, and is an incomplete statement of the law. The Instruction given was in the following language:

'This case is based on a statute of the United States generally known as the Federal Employers' Liability Act which provides that a common carrier by railroad such as th defendant here, shall be liable to damages to any employee suffering injury while he is employed by such carrier by railroad for such injury resulting in whole or in part from the negligence, if any, of the officers, agents or employees of such carrier.'

There were other instructions covering contributory negligence. Thus, Instruction No. 14 offered by the defendant and given by the court reads:

'The federal law which concerns us in this trial provides that a common carrier by railroad, such as the defendant here, shall be liable in damages to any employee who suffers injury when he is engaged in the duties of his employment, which injury results in whole or in part from the negligence of any of the officers or agents or of any employee of such carrier, except solely from the negligence of the one so injured. If all the factors mentioned as creating such liability existed, the fact, if it is a fact, that the employee, himself, was guilty of contributory negligence shall not be a total bar to recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. The application of this rule shortly will be explained.'

Other instructions also further explained the issues of negligence and contributory negligence. The court did not err in giving its Instruction No. 12.

Defendant contends that the court erred in giving its Instruction No. 29 over objection. This instruction enumerated items of damages which the jury should consider such as physical and mental pain and suffering, and then contained this clause: '* * * loss of wages and future earnings, and the impairment of earning capacity, if any, his loss of power and capacity to work, if any, and its effect upon his futhre and his personal inconvenience and disfigurement, if any, insofar as caused by the injuries proven.'

It is the quoted clause that defendant objected to. It contends that the evidence does not show any loss of earnings or impairment of earning capacity. It contends that the evidence does not show when if ever, plaintiff will lose any income by...