Dahmer v. Northern P. Ry. Co.
| Decision Date | 25 October 1913 |
| Citation | 136 P. 1059,48 Mont. 152 |
| Parties | DAHMER v. NORTHERN PAC. RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.
Action by John Dahmer against the Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded.
W. M Johnston, of Billings, and Gunn & Rasch, of Helena, for appellants.
H. C Crippen, of Billings, and Walsh, Nolan & Scallon, of Helena, for respondent.
A jury having returned a verdict for damages against the defendants for a personal injury alleged to have been inflicted upon plaintiff through their negligence, they have appealed from the judgment entered thereon and an order denying them a new trial. The accident occurred at Huntley, a small village in Yellowstone county, at the junction of the Chicago, Burlington & Quincy Railway with that of the defendant railway company. Both roads extend east and west through the village, the companies making use of the same depot or station, the track of the defendant company, with platform for the receipt of freight and the accommodation of passengers, being on the side toward the north, that of the other company on the side toward the south. Immediately north of the defendant company's track is a driveway of ordinary width, and persons going to or coming from the station on that side are compelled to cross the driveway and the track. For the accommodation of those who approach the station on foot, the defendant company has provided a gravel or cinder path extending from the principal street of the village to the north line of the railway. From the end of the path the waiting room, which is at the west end of the station building, is reached by going directly south to the east end of the platform and thence west, or by going southwest to the platform to a point in front of the door opening into the waiting room. These lines of travel are used indifferently. The evidence does not disclose how those who come and go by conveyances reach the station, but there is some basis for the inference that they must alight at the driveway and gain the station by crossing the track. So far as the record shows, access to it can be gained only in the way stated. At the time of the accident the plaintiff was temporarily in the village of Huntley on business and was stopping at a hotel north of the station. On the evening before it occurred he was expecting his mother to arrive on a train designated as No. 4, due from the west at about 8 o'clock. He ascertained, however, that No. 4, being several hours late, would not arrive until after midnight. He was also expecting to meet a business acquaintance who he claimed was to arrive on a train designated as No. 3, from the east, which was due at 1:18 o'clock. Accordingly, he went to the station some 15 or 20 minutes after midnight. Having found that No. 4 would not arrive until some 2 1/2 hours later, he remained awaiting the arrival of No. 3. As this train approached, he stood on the east end of the platform observing it. When it was yet at a distance of 800 or 900 feet from the station, some one dealt him from behind a heavy blow upon the head from which he staggered and fell from the platform upon the rails, being for the moment "partially stunned." While he was in the act of crawling off the track toward the north, the train came upon him, inflicting such injuries that he thereby suffered the loss of both feet. To this narrative may be added the statement of the plaintiff as to his situation at the moment he was caught by the train: That in his effort to escape he had gotten clear of the rail except his right foot, and that as he was drawing it over it was caught by a piece of wire lying near the rail, which caused a delay of a few seconds--a sufficient time to allow the wheels to catch him. The left foot, he stated, must have been drawn under the wheels as he was rolled over by the impact of the wheels with his right foot. That this account is probably correct finds support in the fact that, on the following morning, witnesses who went to look over the ground found a wire lying near the north rail along the side of the path leading from the platform where the plaintiff was picked up after the train had passed, and also by the fact that his right foot was crushed at the ankle, whereas his left foot was crushed at the instep.
The complaint alleges that the defendant company was guilty of negligence in permitting the wire to remain where it was, inasmuch as it must have known that the wire was there and that it was a source of danger to persons going to and from the station. But during the trial the issues in this behalf were eliminated from the case. The specific charge upon which recovery was had is the following: "That the said defendant McDonough, so acting as engineer as aforesaid, in the exercise of reasonable care and diligence, could have seen plaintiff so upon said track, as aforesaid, and plaintiff alleges, on information and belief, that the said McDonough did see him on said track as aforesaid, in seasonable time to have stopped said locomotive and train so as to avoid striking plaintiff, but the defendant company, acting through the said McDonough as engineer, and the said defendant McDonough, wholly failed and neglected to stop said locomotive engine and train, and carelessly and negligently drove and ran said locomotive engine and train upon and over said plaintiff, so on said track as aforesaid, thereby crushing both of his feet to such an extent that it became necessary to amputate the same, which was thereafter done." Counsel for defendants open the argument in their brief with the following statement: "The question is presented on this appeal whether a liability for damages exists under the doctrine of 'last clear chance,' where a person is injured upon a railroad track, at a place where he has no right to be and where his presence could not be reasonably expected or anticipated, because of the failure of the engineer in charge of the train to discover such person's position and peril upon the track in time sufficient to stop the train and avoid injuring him." Assuming the position that plaintiff was a trespasser upon the defendant company's track, and that the evidence fails to show that the engineer actually discovered his presence there, they insist that the trial court should have directed a verdict for the defendants, because the duty to adopt any precaution to avoid injuring the plaintiff did not arise. They thus rely upon the rule of the last clear chance. Counsel for plaintiff insist that this rule has no application to the case, but that the plaintiff, having gone to the station to meet his mother, and having remained there to meet his friend who was to arrive on train No. 3, he was there rightfully because there upon the invitation of the defendant company, and hence that under the rule that it is the duty of a railway company to anticipate the presence of persons about its stations when a train is arriving, including those who go to meet an incoming passenger as well as those who accompany a departing one, and to exercise ordinary care for their safety, the engineer was under obligation to keep a constant lookout to discover plaintiff's position and thus to avoid injuring him. They also argue that the evidence shows conclusively that the engineer must actually have discovered the peril of plaintiff in time to stop the train, and hence that the defendants are liable even under the rule invoked by counsel. The court was of the opinion that the rule of the last clear chance is applicable, as is shown by the following instruction which discloses the theory of the charge submitted: "You are instructed that in this case if the engineer discovered, or in the exercise of reasonable diligence could have discovered, the position of the plaintiff on the track, if you find that he was upon the track in the manner in which he says he was, and it was apparent to the engineer that the plaintiff could not escape from the track so as to avoid being run over, the duty became imperative upon him to use all reasonable care to avoid running over the plaintiff or injuring him, and if he did not do so, and the plaintiff was injured, then the defendants, under such circumstances, would be liable for the injuries inflicted."
Counsel find no fault with the statement of the rule as embodied in the instruction. It may be remarked, however, that the rule is limited in its application to those cases only in which the plaintiff, or the person injured, or his property, has by his own act been exposed to injury at the hands of the defendant, and the defendant, after discovering the situation of the person or property in time, has failed to use ordinary care to avert the injury. 1 Thompson on Negligence, § 228. A case calling for its application embodies three elements viz.: (1) The exposed condition brought about by the negligence of plaintiff or the person injured; (2) the actual discovery by the defendant of the perilous situation of the person or property, in time to avert injury; and (3) the failure of defendant thereafter to use ordinary care to avert the injury. All of these elements must concur, else the rule has no application, and liability must be predicated upon the failure of defendant to discharge toward the person injured or his property some other duty imposed by law under the facts of the particular case as they are made to appear. The duty imposed by it is, not to use ordinary care to discover the peril and also to avert the threatened injury, but to avert the injury after the perilous situation is actually discovered. It is nothing more than a qualification,...
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