Egan v. Montana Cent. Ry. Co.

Decision Date07 January 1901
Citation63 P. 831,24 Mont. 569
PartiesEGAN v. MONTANA CENT. RY. CO. et al.
CourtMontana Supreme Court

Appeal from district court, Silverbow county; John Lindsay, Judge.

Action by Michael Egan against the Montana Central Railway Company and another. From an order denying a new trial, and from a judgment in favor of defendants, plaintiff appeals. Affirmed.

John W Cotter and Howell & Harney, for appellant.

A. J Shores, for respondents.


Having sustained personal injuries through the alleged negligent operation of a train of cars by the defendants, the plaintiff brought this action for damages. At the close of the plaintiff's case the court granted a nonsuit, and judgment was entered in favor of the defendants. From an order denying plaintiff's motion for a new trial, and from the judgment, the plaintiff has appealed.

The single question is whether the plaintiff made a sufficient case to go to the jury, and in considering this question everything which the evidence tended to prove must be taken as established. So viewing the evidence in connection with the pleadings, the following facts, which we adopt, in substance, from the briefs of counsel, appeared: The defendants were operating a line of railway which ran on the south side of the Boulder river, and into and through the town or village of Basin. The Hope mine and mill, where the plaintiff was employed on December 30, 1894, when the accident occurred, was situated about a mile above Basin, and immediately adjoining the right of way of the defendants; and at that point the railway was near the bank of the river while the mine and mill were on the hillside immediately above, with only sufficient intervening space for a spur track and platform, which had been constructed for the use of the mine. Between the mine and Basin the roadbed of the defendants was high and narrow, being wide enough for a single track only. At the foot of the grade on the north side ran the Boulder river, and on the south side was a pond or slough. On the south side of the river the railway grade was the only road or path over which a man could walk between the mine and Basin. This grade, however, did not afford the only roadway between the Hope mine and the town, for there was a wagon bridge about 175 feet above the mine, and near the bridge was a road on the north side of the river leading down to the town. Notwithstanding the existence of the upper road, the miners and other inhabitants of Basin habitually used the railway track for going to and coming from the mine. Two shifts of from 30 to 35 men each were employed at the mine, and these men passed over this portion of the railway twice, and sometimes four times, a day. The railway track had been so used as a pathway for more than a year prior to the accident, and during that time the defendants had known, or possessed the means of knowing, that their track was frequently so used, but took no steps to prevent the trespasses. On the day of the accident the miners, including the plaintiff, quit work at noon, and started down the railway track towards Basin while the whistle at the Hope mine was blowing. The plaintiff stepped upon the track at the mill, and looked to see if there were any trains upon the track, because, as he testified, "there was trains liable to come along any time," and walked slowly towards town. He walked in the middle of the track, following the other men, 12 or 15 in number, who were ahead of him. He walked north about 150 feet before he was struck. The view of the track was unobstructed to the south for a distance of 800 feet or thereabouts. After he started to walk towards town, he did not look back. The freight train which struck him was running at the rate of about 20 miles an hour. The whistle was not blown or bell rung, nor was any signal or warning given. The engineer was leaning out of his cab, looking backward for signals from the rear of the train. The man immediately in advance of the plaintiff turned half way around, and jumped from the track just as the engine struck the plaintiff. At the moment he was struck the whistle of the mill obscured or rendered indistinct minor noises. The plaintiff had often been on that track before when trains had passed along. The men who were ahead of him at the time of the accident were either in the center of the track or close to the track on the end of the ties.

The first question is, were the defendants guilty of negligence proximately causing the injury? Counsel for the plaintiff insist that the defendants were negligent in failing to give notice or warning of the approach of the train. Whether they were or not must, under the facts, be determined by the answer to the question whether the omission of the defendants to observe the presence of the plaintiff on the track in time to warn him of the approach of the train was an act of negligence. It is contended that the defendants were under the legal obligation to maintain a lookout when the train was approaching the stretch of track upon which persons were in the habit of walking, and...

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