Burns v. Eminger
| Decision Date | 22 December 1927 |
| Docket Number | No. 6207.,6207. |
| Citation | 81 Mont. 79 |
| Parties | BURNS v. EMINGER. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Silver Bow County; George Bourquin, Judge.
Action by C. J. Burns, administrator of the estate of Clarence J. Burns, Jr., deceased, against John Eminger. From a judgment for plaintiff, defendant appeals. Affirmed.
Edwin M. Lamb and John K. Claxton, both of Butte, for appellant.
N. A. Rotering and T. E. Downey, both of Butte, for respondent.
The defendant, John Eminger, has appealed from a judgment entered in favor of the plaintiff, Clarence J. Burns, as administrator of the estate of Clarence J. Burns, Jr., for personal injuries suffered by the latter, when a truck owned by defendant and operated by his agent collided with a sled on which young Burns, then 6 years and 3 months old, was coasting.
1. The first contention of defendant is that the complaint does not state facts sufficient to constitute a cause of action.
The complaint alleges the death of Clarence J. Burns, Jr., on December 31, 1925, and the subsequent appointment and qualification of plaintiff as administrator; the business of defendant, and employment of a driver of his truck who, at the time of the accident, was acting within the scope of his employment. It is then alleged that the city of Butte had, long prior to the time of the accident, created a playground for children which it was maintaining at the time of the accident the dimensions and boundaries thereof being set out in the complaint; that on the 30th day of December, 1925, this playground had been flooded and was entirely covered with ice, certain portions of which, being level, were devoted to skating, and a certain particularly described portion was devoted to coasting; that at the time of the accident children were both skating and coasting on the playground, and among those engaged in the latter pastime was young Burns. The complaint then recites that while young Burns was so coasting on a sled, near the foot of the hillside and about three-quarters of the distance from the easterly boundary of the playground, “he was struck, run into and over, and injured” by the truck, from which injuries he died the day following. It is alleged that his injuries “were proximately caused by the negligence, carelessness, recklessness, and want of ordinary care of the defendant, existing by reason of the following facts:”
The facts recited include the charges that the driver of the truck, instead of keeping to the streets of the city in making deliveries, took a “short cut” across the playground; that he and the defendant knew, or should have known by the exercise of ordinary care, that children were using the playground, and that by driving a vehicle thereon, children were being exposed to great danger; that the driver did not keep a proper lookout for children coasting on the grounds, and that, when the driver saw young Burns, the latter was in a position of danger and peril which the driver could have avoided by driving his truck “several feet to the north.” It is further alleged that the driver and defendant knew that it was dangerous to drive the truck on the steep grade of the coasting grounds, “unequipped, as it was, with wheel chains.”
It is alleged that it was possible to have driven the truck further north, but that, with a clear view of the hillside and seeing young Burns coming, the driver, whose duty it was to sound his horn, gave no warning and did not drive out of the way, but instead stopped his car, and, in doing so, owing to the lack of wheel chains, his truck not being under reasonable control of the driver, “swinging and sluing around at and immediately before” striking young Burns, caused the accident and injury; that young Burns “did not die instantaneously, but survived said injuries an appreciable length of time.” It is further alleged that deceased was a strong, able-bodied boy, and would have enjoyed a long life, and “would have earned much money after he became 21 years of age;” that at his death young Burns had a cause of action, and this action survived to the administrator of his estate. The complaint prays judgment in the sum of $25,000.
It cannot be admitted for a moment that the driver of a truck or automobile may, with impunity, for the purpose of...
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Incret v. Chicago, M., St. P. & P. R. Co.
... ... the action of the jury precludes this court from disturbing ... the verdict ( Burns v. Eminger, 81 Mont. 79, 261 P ... 613; Pierce v. Safeway Stores, 93 Mont. 560, 20 P.2d ... 253; Wise v. Stagg, 94 Mont. 321, 22 P.2d 308), ... ...
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Incret v. Chi., M., St. P. & P. R. Co.
...resolved by the jury in favor of the plaintiff, the action of the jury precludes this court from disturbing the verdict (Burns v. Eminger, 81 Mont. 79, 261 P. 613;Pierce v. Safeway Stores, 93 Mont. 560, 20 P.2d 253;Wise v. Stagg, 94 Mont. 321, 22 P.2d 308), but this is true only when there ......
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Richland County v. Anderson, 9252
...solid support in the record, which precludes this court from disturbing the verdict for want of evidence to sustain it. Burns v. Eminger, 81 Mont. 79, 261 P. 613; Pierce v. Safeway Stores, 93 Mont. 560, 20 P.2d 253; Wise v. Stagg, 94 Mont. 321, 22 P.2d 308; Cannon v. Lewis, 18 Mont. 402, 45......
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Morton v. Mooney, 7219.
...resolved by the jury in favor of the plaintiff, the action of the jury precludes this court from disturbing the verdict [Burns v. Eminger, 81 Mont. 79, 261 P. 613;Pierce v. Safeway Stores, 93 Mont. 560, 20 P.(2d) 253;Wise v. Stagg, 94 Mont. 321, 22 P.(2d) 308], but this is true only when th......