Cole v. Helena Light & Ry. Co.
| Decision Date | 06 October 1914 |
| Docket Number | 3401. |
| Citation | 143 P. 974,49 Mont. 443 |
| Parties | COLE v. HELENA LIGHT & RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Action by Mary A. Cole against the Helena Light & Railway Company, a corporation, and another. From a judgment for defendants and an order denying new trial, plaintiff appeals. Affirmed.
Edward D. Phelan and E. A. Carleton, both of Helena, for appellant.
O. W McConnell, of Helena, for respondents.
Action for damages for personal injuries alleged to have been sustained by the plaintiff in a collision between a wagon in which she was riding and a car of the defendant Helena Light & Railway Company, in the city of Helena, brought about by the negligence of the defendant Vickery, the motorman in charge of the car. One line of the railway extends north from the central portion of the city along Park avenue to its junction with Benton avenue, and thence north along the latter for several blocks, crossing Lyndale and Wilder avenues. After leaving the limits of the city, the line extends to the state fair grounds, situate to the northwest. The collision occurred near the intersection of Benton and Wilder avenues. Benton avenue is 76 feet in width. The railway at this point has a double track. The space between the outer rail of the track to the east and the curb of the sidewalk is 16 feet and 10 inches. For several hundred feet to the south the avenue is perfectly straight and to the point at which the collision occurred is nearly level; its grade being 1.51 per cent. down toward the north. The plaintiff narrated the circumstances of the accident as follows: During the afternoon of Saturday, September 28 1912, she was proceeding along Benton avenue, intending to go to the state fair grounds to purchase vegetables from the owners of some of the collections of farm products which had been on exhibition at the state fair during the preceding days of the week. Her wagon was a light spring wagon drawn by a single horse. Cars were passing at short intervals in both directions, and also many vehicles carrying passengers to and from the fair grounds. After passing Lyndale avenue, the plaintiff overtook a heavy wagon loaded with coal moving along the east side of the street. Being anxious to reach the fair grounds, and observing that the street beyond the coal wagon was free from passengers, she undertook to pass this wagon by driving to the left between it and the car track. Whether the space between the wagon and the track was of sufficient width to permit her to pass without getting upon or in dangerous proximity to the track does not distinctly appear. Perhaps the evidence furnishes ground for an inference that she could barely pass with safety. As she was turning in near the track, having slowed her horse down to a walk, she heard the clang of the bell of a car coming from the south, and attempted to turn to the right, but before she could do so the car caught the front wheel of the wagon, with the result that she was thrown from her seat into the body of the wagon by the shock of the collision, suffering the injuries complained of. The wagon was not overturned; the injury done to it being the breaking of the wheel and body, and a part of the coupling gear.
The complaint is prolix, and contains much repetition. It is alleged, in substance, that plaintiff, in her haste to reach the fair grounds, was wholly absorbed in her purpose to accomplish her mission, so far so that she did not observe the approach of the car from behind; that, being wholly oblivious of her surroundings, she unconsciously put herself in a position of peril by driving directly in the way of the car; that the defendant Vickery saw the peril of the plaintiff, and also that she was wholly unconscious of her condition; and that he nevertheless, by not having the car under control, and by permitting it to run at a dangerous rate of speed, negligently and recklessly brought it into collision with plaintiff's wagon.
The defendants, by separate answers, admitted that plaintiff was injured by the collision as alleged, but by way of denials and counter averments tendered issue upon all the allegations imputing negligence to them. At the close of plaintiff's evidence the defendants moved the court to direct a verdict in their favor. Pending argument on the motion, counsel for plaintiff requested permission to introduce additional testimony which they deemed material. The request was denied. Thereafter defendants' motion was sustained, and judgment ordered accordingly. The plaintiff has appealed from the judgment and an order denying her motion for a new trial.
Counsel for defendants has made the point that, however erroneous may have been the action of the court in directing a verdict, this court may not review it, because the complaint does not state facts sufficient to constitute a cause of action. The contention that the complaint is bad is not well made. If this were the case, defendants would be entitled to an affirmance of the judgment and order without further consideration of the appeals. Tracy v. Harmon, 17 Mont. 465, 43 P. 500; Shober v. Blackford, 46 Mont. 194, 127 S.W. 329.
We shall consider the argument of counsel in this behalf only so far as to remark that it is not the law, as counsel seems to think, that the allegation that plaintiff, being oblivious of her surroundings, unconsciously put herself in peril by driving directly in the way of the car is conclusive of her right to recover. Whatever may have been her negligence in this regard, it was nevertheless incumbent upon the defendant Vickery to keep a constant lookout ahead and around for other passengers...
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