Conway v. Monidah Trust, 3635.

• Docket Nº: No. 3635.
• Citation: 52 Mont. 244
• Case Date: April 17, 1916
• Court: United States State Supreme Court of Montana

52 Mont. 244

CONWAY
v.
MONIDAH TRUST ET AL.

No. 3635.

Supreme Court of Montana.

April 17, 1916.

Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by Joseph F. Conway, Sr., against the Monidah Trust, a corporation, and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions to enter judgment for defendants.

Joseph J. McCaffery and James E. Murray, both of Butte, for appellants.

Peter Breen and H. K. Jones, both of Butte, for respondent.

HOLLOWAY, J.

On the evening of July 19, 1911, Joseph F. Conway, Jr., age 7, and his sister, age 6, by consent of their parents were taken by Wm. Maddox onto the Tzarena mining claim, owned by the Monidah Trust and located near the limits of the city of Butte. While on the claim, Joseph F. Conway, Jr., fell into an unguarded shaft and was injured. The facts of the case are detailed at length in Conway v. Monidah Trust, 47 Mont. 269, 132 Pac. 26, L. R. A. 1915E, 500, and 51 Mont. 113, 149 Pac. 711--the case in which the child recovered damages for his own injuries. In this action the father seeks damages for the loss which he (the father) sustained by reason of the diminished earning capacity of the boy from the date of the injury until he should reach the age of 21. Upon the trial Maddox, the custodian of the child at the time of the accident, testified as a witness for the plaintiff. On cross-examination he said:

“I was familiar with that ground before I went out there, for three or four years. I walked ahead of the children about 20 feet or so; I couldn't exactly tell you right now. I knew that the shafts were there and open prior to that time. I went up and sat on the ledge of rocks and let the children play around picking flowers. I called to them to come up; my back was turned to them. The two of them was coming up at this time. They had been playing around there two or three minutes before I called to them. They were there for sufficiently long period of time to permit me to go up and sit upon the ledge of rocks and take out my pipe. I filled my pipe and lit it, and while I sat down for a smoke, I observed the train coming along, and at that moment I called for the children to come up. The children were down around these shafts during all the time it took me to do these things. They were about 20 feet or less than 20 feet north of this shaft when I called them. Of course, I didn't think they would run near the shaft. If I did, I wouldn't have brought them there at all. I never gave it a thought. I certainly knew the shafts were there. I walked all over that place several times, but was not giving it a thought at the time. My mind was absorbed for the time being in the Chicago & Milwaukee railroad train coming in, and I didn't give a thought to the danger that the children might encounter around these shafts. * * * I remember at the last trial that the boy testified that he was picking flowers, and that he made a run to get a flower on the other side of the shaft, and that he wasn't running up there to see me at all. * * * If he had observed where he was going, he would have seen and avoided the shaft. I knew that he was standing near the northeast corner of the shaft at the time I called to him. The shaft lay between me and the boy at the time I called for him; it was pretty near in line north; in a direct line between myself and the boy. He was a little shade to the east, and if he attempted to come directly to me, without going around the shaft, he would be in danger of running into the shaft. I knew that at the time I called him, but didn't give it a thought; didn't think anything about the shaft. At the time I went there and left the boy around the shaft, I had complete knowledge of all these shafts being open and exposed there, and I certainly knew of the danger that the children might encounter with reference to falling down these shafts, but never did think anything about it. I wouldn't have gone there if I thought that.”

The same witness further testified in answer to direct and leading questions by plaintiff's counsel, as...