Le Deau v. Northern Pac. Ry. Co.

• Decision Date: 20 April 1911
• Citation: 19 Idaho 711,115 P. 502
• Parties: CHARLES B. LE DEAU, Respondent, v. NORTHERN PACIFIC RAILWAY CO., Appellant
• Court: Idaho Supreme Court

115 P. 502

19 Idaho 711

CHARLES B. LE DEAU, Respondent, v. NORTHERN PACIFIC RAILWAY CO., Appellant

Supreme Court of Idaho

April 20, 1911

RAILWAY ACCIDENT-DAMAGES-NEGLIGENCE.

(Syllabus by the court.)

1. L while riding on a railway train, was struck by a rock or boulder which rolled from the mountain-side, and received an injury for which he sought to recover damages from the railroad company; the evidence failed to show the cause which set the rock in motion or the place from which it started but did satisfactorily show that the stone did not come from the face of the cut through which the train was running or from the company's right of way, and the evidence failed to show any negligence on the part of the company. Held, that the railroad company was not liable for damages sustained on account of the injury thus received.

2. Where an accident occurs and an injury is received by a passenger on a railway train, and the evidence clearly discloses that the injury was not caused by any defect in the machinery or appliances used by the company in the operation of its road or by any defect in the construction of the road and was not caused by any act of the employees of the company or of any person in charge of the train, there is no presumption of negligence on the part of the railway company and it is incumbent on the party seeking relief to prove negligence.

3. A railroad company will not be held liable for an injury inflicted on a passenger by reason of a stone rolling down the mountain-side and striking the passenger, unless it is shown that the company had either actual notice of the danger or that the place or immediate locality from which the rock fell was so obviously dangerous as to impute notice of the danger to the railroad company and charge it with negligence in failing to take reasonable precautions to prevent an injury from such cause.

APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. Robert N. Dunn, Judge.

Action by the plaintiff to recover damages for personal injury. Judgment for the plaintiff and defendant appealed. Reversed.

Judgment reversed, and a new trial granted. Costs awarded in favor of appellant.

McFarland & McFarland, for Respondent, cite no authorities.

Edward J. Cannon, George M. Ferris and R. L. Black, for Appellant.

There is no presumption of negligence in a case of this kind and the burden was on the respondent to show that the rock injured him by reason of the appellant's negligence. Having failed to show what caused the rock to be thrown or started, he failed to prove sufficient facts to make any question for the jury. (Penn. Ry. v. MacKinney, 124 Pa. 462, 10 Am. St. 601, 17 A. 14, 2 L. R. A. 820; Spencer v. Chicago Ry., 105 Wis. 311, 81 N.W. 407.)

Appellant would be liable to respondent for injury caused by the rock's falling down the mountain-side only in case respondent proved facts from which it could be reasonably inferred that such accident should have been reasonably foreseen by appellant. But such fact was neither directly nor indirectly established by the evidence. (Fleming v. Pittsburg, 158 Pa. 130, 38 Am. St. 835, 27 A. 858, 22 L. R. A. 351; Wadsworth v. Boston Ry., 182 Mass. 572, 66 N.E. 421; Ginn v. Pennsylvania Ry., 220 Pa. 552, 69 A. 992; Rhea v. Minneapolis Ry., 111 Minn. 271, 126 N.W. 823.)

The cause of the accident was not connected with the means and appliances of transportation. (Thomas v. Phil. Ry., 148 Pa. 180, 23 A. 989, 15 L. R. A. 416.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

Respondent obtained a judgment against defendant for $ 1,287.75, damages alleged to have been sustained by reason of personal injuries received by respondent while riding on appellant's railway train. The respondent took passage on appellant's train at Houston Station, Montana, for a trip to Coeur d'Alene City, and while traveling between Taft and St. Regis stations, a rock or boulder rolled down the mountain-side, passed through the car window, and struck respondent on the shoulder, inflicting a serious blow.

It appears that the railroad track runs around a precipitous rocky mountain-side, and that at the place where the accident occurred the track passes through a cut in the point of a spur of the mountain, and that this cut is about twenty feet deep. From the top of the open cut the mountain slopes back and is rather rugged and precipitous, and is covered with loose rock and boulders. No one saw the rock start, and no one pretends to testify as to the cause which started it, or the place from which it fell. The respondent testifies that when he first saw it, it was in the air, some ten or twenty feet from him, and apparently had come from high up on the mountain; that it was coming with great force. Another witness, who at the time sat on the seat beside respondent, saw the rock at about the same time, when it was in the air falling toward respondent. It broke through the top of the car window and struck respondent on the shoulder, and rolled off onto the floor. The evidence varies as to the size of the stone, but it was somewhere from three to twenty pounds in weight.

Some evidence was introduced to show that the company had noticed that rocks frequently rolled down this mountain-side and lodged on the track, and that it had been necessary at times to stop the train and have them rolled off before passing. This is the substance of all the evidence given in the case.

The appellant contends that the evidence is not sufficient to charge the railroad company with negligence, and it is therefore not sufficient to support the verdict and judgment. The only question for consideration is that of negligence. It is clear from this evidence that the rock did not fall from the side of the cut. It was evidently not an overhanging or loose rock left on the face of the cut through which the track was laid. The respondent seems to think that the rock came from high up on the mountain-side, and that theory is borne out by the testimony of the other witnesses, as well as by the surrounding circumstances, and the actual falling of the stone and its striking the car at the height and place where it did strike. It must have come from a considerable distance in order to have gained a sufficient momentum to drive it from the place where it last struck the ground above the face of the cut, and carry it through the car window in the direction in which it was passing when it struck respondent...