Freeman v. Chicago, M. & St. P. Ry. Co.

• Court: Montana Supreme Court
• Writing for the Court: SANNER, J.
• Citation: Freeman v. Chicago, M. & St. P. Ry. Co., 52 Mont. 1, 154 P. 912 (Mont. 1916)
• Decision Date: 24 January 1916
• Docket Number: 3586.
• Parties: FREEMAN v. CHICAGO, M. & ST. P. RY. CO. ET AL.

154 P. 912

52 Mont. 1

FREEMAN v. CHICAGO, M. & ST. P. RY. CO. ET AL.

No. 3586.

Supreme Court of Montana

January 24, 1916

Appeal from District Court, Meagher County; J. A. Matthews, Judge.

Action by Joseph H. Freeman against the Chicago, Milwaukee & St Paul Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Shelton & Furman and A. J. Verheyen, all of Butte, and L. D. Glenn of Harlowton, for appellants.

Jones & Jones, of Harlowton, and Purcell & Horsky, of Helena, for respondent.

SANNER J.

The respondent, plaintiff below, brought this action to recover for personal injuries alleged to have been suffered by him while a passenger on one of the trains of the appellant railway company in consequence of the derailment thereof. The questions presented are whether negligence on the part of appellants was shown; whether such negligence was the proximate cause of the injuries complained of; whether the damages awarded are excessive; whether the verdict is contrary to law; and whether errors of law prejudicial to the appellants were committed at the trial.

1. It is not disputed that the respondent was a passenger for hire and that the car in which he rode was derailed. This raises a presumption of negligence. Hoskins v. Northern P. Ry Co., 39 Mont. 394, 102 Pac. 988; Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 P. 867. If the evidence presented by appellants tended to show the contrary, its utmost effect was to raise a question for the jury. Rev. Codes, § 8028, subd. 2; 3 Thompson on Negligence, § 2773. Some contention is made that the presumption of negligence arising from the derailment is not available to respondent, because he presented evidence tending to show the cause of the derailment. The record does not show that the cause of the derailment was established. Hence the respondent was not, either as a matter of pleading (Hoskins v. Northern P. Ry. Co., supra) or as a matter of proof (Cassady v. Old Colony St. Ry., 184 Mass. 156, 68 N.E. 10, 63 L. R. A. 285), deprived of the benefit of the presumption.

2. The derailment occurred on June 30, 1913, at Harlowton. The injuries imputed to it by the complaint are that the respondent was bruised, shocked, and wounded; that his right arm and right ankle were bruised and broken; that other injuries theretofore sustained by him and from which he was then recovering were greatly aggravated; that his injuries are permanent; and that, because of them, he has sustained great bodily and mental suffering, and is incapacitated for business. The evidence produced in his behalf tends to show these facts: He is a rancher, and at the time in question was 52 years old. On the preceding 16th of May he met with an accident which resulted in the breaking of his right arm above the elbow, and a "Pott's fracture" of the right ankle. For these he sought and received such medical treatment that at the time of the derailment he was in a fair way to complete recovery; his arm and ankle giving him no trouble. In the derailment he was thrown bodily against the side of the car, striking against his right elbow, and thereafter his elbow was found to be sore and discolored, his arm hurt, his ankle sprained, his head bruised, he suffered loss of sleep and much pain from both ankle and arm, and two or three weeks later began to lose control of his wrist and hand. This loss of control has since become total, showing an affection of the nerve which supplies the muscles of the forearm, wrist, and hand, creating a form of paralysis known to surgeons as "wrist-drop." The course of this nerve leads close to the elbow, and the condition of wrist-drop could have resulted, and it is reasonably probable that it did result, from the impact of the arm against the side of the car as stated above.

A surgical examination of the respondent in October, 1913 disclosed that the nerve in question had become imbedded in a callous surrounding the point of the old fracture. No such condition was indicated in the middle of June, and was not probable as matters then stood. It could have been caused by excessive motion or too early use of the arm, but there is nothing to show that such was, or probably was, the cause. At the October examination the surgeon dissected the nerve from the callous, the purpose being to allow the nerve to regenerate if it would, but the wrist-drop remains and will remain unless something...