Cornell v. Great Northern Ry. Co.

Decision Date02 February 1920
Docket Number4394.
Citation187 P. 902,57 Mont. 177
CourtMontana Supreme Court

Appeal from District Court, Musselshell County; Geo. P. Jones Judge.

Action by William D. Cornell against the Great Northern Railway Company and another. From a judgment for plaintiff and a denial of a new trial defendants appeal. Reversed and remanded.

Veazey & Veazey, of Great Falls, for appellants.

E. E Enterline, of Billings, and G. J. Jeffries, of Roundup, for respondent.


Plaintiff having recovered a judgment in the district court, defendant has appealed therefrom and from an order denying his motion for a new trial.

For some five years prior to February 5, 1916, plaintiff had been in the employ of the defendant railway company (referred to hereafter as the company), as an engineer operating a stationary gasoline engine to furnish power for hoisting coal into the coal docks of the company and for pumping water into its water tank at Cushman station, in Musselshell county. The defendant Hudgin was employed in the capacity of a pump repairer. It was his duty to inspect and, when occasion required, to repair the gasoline engines of the company at Cushman and other stations along its line of railway. The igniter or device used to produce combustion adopted by the manufacturer of the Fairbanks-Morse engine, the type in use at Cushman station, is provided with a heavy steel plate elliptical in shape, which fits over the aperture in the head of the cylinder through which the device is inserted and is held in place by two steel stud bolts. These are made of cold rolled steel and are threaded throughout their entire length. The device is adjusted for service as follows: The bolts are screwed into holes sunk in the face of the cylinder which are properly threaded for that purpose. The plate of the igniter being provided with holes to correspond with those in the cylinder, is slipped over the projecting ends of the bolts and screwed tight to the face of the cylinder by hexagonal nuts, a gasket of the same size as the plate being first placed between the plate and the cylinder. The office served by the gasket is to prevent the escape of gas between the plate and the face of the cylinder, and to retain the full force of the explosions in the cylinder. The gasket ordinarily used is made of asbestos felt paper covered with thin sheets of copper or interwoven with copper wires. The plates or wires, as the case may be, strengthen the paper so that it will not go to pieces and be blown out by the force of the explosions. At the time of the accident out of which this action arose, the plaintiff, having at hand none of these gaskets, was using others made of the felt paper as a temporary substitute. It was a part of the plaintiff's duty to remove the igniter from time to time to clean the spark points and to make repairs upon the engine with the material he had at hand, when occasion demanded and Hudgin was not present. This frequently required replacement of the gasket, because it would go to pieces when the plate was removed. On November 20, 1915, one of the stud bolts was broken. Plaintiff, having no other for use, substituted temporarily a wrought-iron machine bolt with a round head. This was longer than the stud bolt. The plaintiff used metal washers to take up the extra space between the head of the bolt and the plate, to enable him to screw the bolt tight so that it would hold the igniter in place. To do this it was necessary to use an alligator wrench, because the one furnished for ordinary use would not take hold of the head of the bolt. A short time after these repairs had been made, the defendant Hudgin, who happened to come to Cushman station, examined the engine to ascertain whether it was in repair. He assured the plaintiff that it was safe, at the same time promising him that he would furnish another bolt to take the place of the machine bolt. Plaintiff had some time before asked him for a supply of gaskets. Hudgin did not thereafter furnish a bolt, though the plaintiff several times requested him to do so, and though he knew that in the condition it then was the engine was not safe; nor did he furnish the gaskets. The machine bolt frequently worked loose and permitted the gas from the explosions to escape.

The plaintiff alleges:

"That on the 5th day of February, 1916, and while the plaintiff was in the employ of the defendant Great Northern Railway Company in the capacity aforesaid, and while running and operating said gasoline engine, the said igniter in the head of said engine, suddenly and without warning, and by reason of the dangerous and defective condition thereof as aforesaid, and by reason and owing to the negligence and carelessness of the defendants in failing, neglecting, and omitting to furnish and supply the said proper, suitable, and necessary repairs for said gasoline engine, and in carelessly and negligently failing, neglecting, and omitting to repair the same, became loose and the gasket therein blew out, thereby throwing, with great force and violence, pieces of asbestos, sparks, and other material upon and against plaintiff's head, face, and body, thereby cutting, lacerating, bruising, wounding, burning, and injuring plaintiff's head, face, left eye, and body."

It is further alleged that from the injury so received the sight of plaintiff's left eye became and has remained blurred and almost wholly destroyed; that he has been compelled to undergo several operations to obtain relief from the extreme pain suffered by reason of the injury; that he will finally lose the sight of his eye entirely; and that he has become incapacitated to do any work, whereby his earning power has been entirely destroyed.

The defendants deny all the allegations in the complaint imputing negligence to them, or either of them, and allege as defenses that plaintiff was guilty of contributory negligence, that he assumed the risk, and that his injury was due to the fault of his fellow servants.

The verdict was for the sum of $17,500. One of the grounds of the motion for new trial was that this verdict was so excessive as to show that it was given under the influence of passion and prejudice. In determining the motion the trial judge expressed the opinion that, while the jury had not been influenced by passion and prejudice, their award was excessive to the amount of $6,500, and ordered a new trial unless the plaintiff should consent that the verdict and judgment be reduced by this amount. Thereupon, the plaintiff having given his consent, the reduction was made and the judgment amended accordingly. Counsel insist that the court erred in not granting the motion without condition.

The evidence discloses that the plaintiff had lost the sight of his right eye many years before the accident; that his only injury was a partial loss of the sight of his left eye and the incidental pain and suffering consequent to such an injury; that he was 67 years of age and had an expectancy of life of only 10 years; that he was earning at that time $50 per month; and that for the five preceding years he had earned not to exceed an average of this sum per month. Under these circumstances we think the verdict was much in excess of just compensation for the injury. Assuming that plaintiff should live for the full period of his expectancy of life, retaining his capacity for service in the same or other equally remunerative employment unimpaired, and that the course of his employment would not be interrupted by sickness or other cause, the gross amount of his earnings for the entire period of his expectancy of life would be $6,000, without any reduction in consideration of his having the present use of this sum instead of his having it paid to him in deferred monthly installments. In addition to this he was awarded $11,500 for pain, suffering, etc. The two sums together, invested at interest at the rate of 6 per cent. per annum, would enable him to secure an income of nearly double the amount of his gross annual earnings, and at his death to leave the principal to descend to his heirs. Even the sum to which the trial court reduced the award, invested at the same rate of interest, would secure an annual income greater than the amount of his gross earnings. In the absence of evidence disclosing unusual pain and suffering by plaintiff, and outlay for medical and surgical treatment (and there is no evidence on this point), we think the amount awarded to him might properly have been further reduced. The office of juries in such cases is to compensate the living plaintiff for the loss sustained by him, and not to endow his heirs. We are of the opinion, however, that the excessiveness of the award is attributable to miscalculation by the jury under the instruction submitted to them rather than to feelings of passion and prejudice. This, we think, will be apparent when we consider the instruction as to the use the jury might make of annuity and mortality tables in determining the amount they might allow plaintiff to cover the wages of an attendant, in connection with the evidence on that subject, in case he should lose the sight of his eye entirely. In this connection the court submitted to the jury the following instruction:

"If you find for the plaintiff, and should further find that the capacity of the plaintiff to labor or earn money has been reduced by reason of his injuries, you should award him such sum on that account as will purchase an annuity equal to the difference in the amount he could earn annually, in view of his injuries, and the amount he could have earned annually were it not for his injuries, taking into consideration, however, the diminution of his earning capacity due to causes other than the

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