Burns v. Eminger

Decision Date26 March 1929
Docket Number6413.
Citation276 P. 437,84 Mont. 397
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by C.J. Burns against John Eminger. Judgment for plaintiff and defendant appeals. Affirmed.

R. F Gaines and John K. Claxton, both of Butte, for appellant.

T. E. Downey and N. A. Rotering, both of Butte, for respondent.


Appeal from a judgment awarding plaintiff $2,500 damages for the death of his minor son, resulting from a collision between a sled on which the boy was coasting with a delivery truck owned by defendant and driven by one Roy Quinton.

Except as to the allegations of contributory negligence and the plea of res adjudicata, the pleadings are, in all essential particulars, the same as those in Burns v. Eminger, 81 Mont. 79, 261 P. 613, wherein judgment for plaintiff, as administrator of the boy's estate, was affirmed. Defendant, however, contends that the evidence differs materially from that adduced on the trial of the estate's suit, in that it shows that the accident occurred on a public highway and off of the public playground described in the pleadings, and further shows that Quinton was neither "cutting across" the playground nor driving up an icy incline.

As shown by a map introduced in evidence and by the evidence adduced, the territory involved in this suit extends 400 feet west of North Jackson street in the city of Butte, and includes the strip of land which would be Copper street, if extended west from North Jackson street; the south half of a platted block to the north of this strip; platted lots to the south of the strip, 100 feet deep, facing on Jackson street and bounded on the west by an alley; and vacant unplatted surface ground of the Silver King lode, extending from this alley west. In 1923 the city council secured consent in writing from the owners to use a portion of this surface ground, bounded on the north by the north line of the lode, as a public playground. On the half block north of Copper street if extended, the last lot to the west is occupied by a dwelling known as "the Shea house," the fifth lot east is occupied by a dwelling known as the "O'Neill house," the lots between the two, 120 feet in width, being vacant. The south wall of the Shea house is approximately 17 feet north of what would be the north line of Copper street, if extended. The north line of the Silver King lode is not exactly parallel with the south line of the lots above mentioned; it passes within 3 feet of the southwest corner of the Shea lot and within 10 feet of the southwest corner of the O'Neill lot. Thus that portion of Copper street, if extended, past these two dwellings, would lie almost wholly within the Silver King lode. Copper street has never been platted or laid out west of North Jackson street, and, according to the overwhelming preponderance of the evidence, no vehicles ever passed over this strip from the Shea house to the O'Neill house until after the city filled in an impassable gulch across it for the purpose of preparing the playground; the fill being made in 1923 and thereafter. In making this fill, city trucks made trails across the ground which were thereafter traveled to some extent by the public.

In addition to use of the playground by children, young workingmen, in season, used it evenings as baseball, basket ball, and football grounds. They did not confine the grounds to the surface of the Silver King lode, but extended them into the vacant lots above mentioned, between the Shea and O'Neill dwellings, and, for their accommodation, the Montana Power Company placed arc lights on the playground; but one of these lights is upon the surface ground of the Silver King lode donated for playground purposes; one is in the middle of what would be Copper street, if extended, and to the east of the O'Neill house; one stands in the center of the vacant lots mentioned, thirty odd feet north of the south line of the lots.

In the winter a portion of the surface ground of the Silver King lode is converted into a skating rink, bounded by cinder embankments to retain the water; the north embankment being, at the time of the accident, 50 or 60 feet south of the north line of the lode, and a steep incline extending from Jackson street down what would be Copper street, if extended, to a point just west of the O'Neill house, is used for coasting. At the time of the accident, these two areas and the intervening space were coated with ice, caused by flooding engineered by city employees. Sleds descending the "coasting hill" would be carried by their momentum out over level ground toward the Shea house, or their riders could turn southwest at the O'Neill house, or just beyond, thence across the intervening space to the cinder embankment, where a "jump" was arranged, giving the effect of "ski jumping" onto and across the skating rink. Thus it appears that the playground, as maintained by the city and used by the young folks, was not confined to the allotted surface ground of the Silver King lode.

Some time after 5 o'clock p. m. on the day of the tragedy, Quinton was making deliveries to the north and west of the Shea house, and was then called upon to go to defendant's residence on North Jackson at the extreme southeast corner of the territory above described. In order to save time, instead of driving east, on a regularly established street, to North Jackson, then down Jackson to defendant's residence and around to the rear through the alley, he attempted a short-cut south to the Shea house, swinging around a post set at the southwest corner of the lot and headed east, this would bring him well onto the surface ground of the Silver King lode. He drove east to a point about 40 feet west of the O'Neill house; here, as the north line of the lode was 10 feet south of the O'Neill line, he may or may not have been on the lode surface when the Burns boy was seen by Quinton approaching on his sled at about 20 miles an hour and at a distance of about 45 feet. Quinton turned his truck facing north and stopped. Witnesses for the plaintiff say that, in stopping the truck, which was without chains, Quinton slewed to the east and while slewing struck the sled and boy. Quinton and certain witnesses for the defendant say that the truck did not slew, and was standing still when the boy ran into it.

There is considerable evidence to the effect that Quinton did not sound his horn and was not keeping a lookout, but was watching the boys skating on the rink; this testimony being disputed by Quinton. The evidence is in conflict as to whether the boy turned toward the north just prior to striking the rear of the truck or turned south in an effort to avoid it; but it is admitted that, had Quinton driven a foot or so further north instead of stopping his car, the accident would not have happened. Four of five witnesses marked on the plat placed in evidence the spot where the boy fell; this mark would indicate that the accident occurred more than 50 feet south of the north line of the lode.

Counsel for defendant say that the witnesses were misled by the fixing of the point with reference to the lower arc light, which had been moved between the time of the accident and the making of the map, but, while testifying, these witnesses fixed the point with reference to the cinder embankment to the rink, and the south line of Copper street, if it had been extended, and the designated spot on the map coincides with this testimony. All of the witnesses testified that the boy did not roll to exceed two or three feet after striking the truck, and all testified to fixing the place of the accident by a large spot of blood on the ice. Quinton fixed the place of the accident as just north of the north line of the Silver King lode and the spot of blood as 10 or 12 feet south thereof, on the lode claim.

The defendant testified that the trial from the Shea house east had been used for general travel for more than 10 years, thus contradicting five or six witnesses for the plaintiff. At the close of plaintiff's case, defendant moved for a nonsuit and at the close of all of the evidence moved for a directed verdict; after judgment, he moved for a new trial. Each motion was overruled.

1. Defendant's first specification of error is predicated upon the overruling of his objection to a question propounded to the county surveyor which counsel say called for the conclusion of the witness as to whether or not the place of the accident was on a public road or highway. The record is not clear as to what question and objection are intended by the specification of error. The witness was first asked, "Do you know of your own knowledge whether or not that is a public road or highway?" to which the objection that the question called for a conclusion of the witness was interposed and overruled. After some discussion, an answer was given and stricken by the court, and finally, after considerable preliminary questioning to show knowledge, the witness was asked if, from his own knowledge, he could say whether or not on the date of the accident that part of West Copper street, if extended, was used as a public road or highway, to which question a like objection was interposed and overruled. The question as finally framed and answered was not objectionable, and therefore no prejudicial error was committed in the first instance.

2. Defendant next predicates error upon the court's action in sustaining an objection to his offer of the judgment roll in the case of Burns, Adm'r, v. Eminger, supra. Defendant had set up as an affirmative defense that plaintiff was a beneficiary under the former judgment; that the facts here were the same as there; and that therefore the judgment was a bar to...

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