Gates v. Northern P. Ry. Co.

• Court: Montana Supreme Court
• Writing for the Court: SMITH, J. BRANTLY, C.J. HOLLOWAY, J.
• Citation: Gates v. Northern P. Ry. Co., 37 Mont. 103, 94 P. 751 (Mont. 1908)
• Decision Date: 28 March 1908
• Parties: GATES v. NORTHERN PAC. RY. CO. et al.

94 P. 751

37 Mont. 103

GATES v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Montana

March 28, 1908

Appeal from District Court, Missoula County; Henry L. Myers, Judge.

Action by A. M. Gates against the Northern Pacific Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

Wallace & Donnelly, for appellants.

Hall & Patterson, for respondent.

SMITH J.

The following statement of the facts in this case is adopted from the brief of the appellant, supplemented by certain suggestions made by the respondent: This action was brought by plaintiff in Missoula county to recover damages for the death of his 11 year old son, Amos Gates, who was killed on the afternoon of June 14, 1906. On June 13, 1906, the defendant Heaney was in the employ of the defendant railway company at Missoula as foreman of a crew of men employed in the yards. Some time during the forenoon of that day the men under his charge took the body or wooden part of a worn-out coal car to a point on the main line of the railway several hundred feet east of the passenger station, but within the yard limits, and left it at the side of the track, intending later to burn it. The iron braces and rods were still on the car, but not the wheels. It looked topheavy-as though it would easily tip over. The railroad track at the point where the car was left rests upon a fill or embankment, the top of which is 20 feet above the level of the ground on either side; the sides of the fill sloping outwardly from the track to the level ground below. When the car was first deposited on the bank, it rolled down further than the employés expected that it would, and they hauled it back to the point where it was finally left, so that, when it burned, no damage would be done to other property. The car was left bottom side up on the north slope of, and about half way down, the fill. Between 2 and 3 o'clock in the afternoon of the next day the deceased, in company with his twin brother, Elihu, and a still younger brother, was standing on the defendant's right of way, near the bottom of the fill, looking at the car. The children started from the house of one Graham to go to a certain frog pond to swim, when they saw the car and went down to see it. Elihu testified: "We seen this car up there on the bank, and it called our attention, and we hurried over there." It appears that, in addition to the swimming pond, there was a certain lumber yard somewhere in the vicinity of the defendant company's ground to which a path led across the right of way. When the boys first observed the car, they were in the path; but turned out of it, and went to the foot of the fill to look at the car. There was another path or trail directly under the car, but this was not the one the boys were traversing when their attention was first attracted to the car. These paths had been in existence for several years, and had been used by persons crossing the track. Between the time when the car was left on the embankment and the time of the accident 32 trains of the defendant company passed the spot. The last of these trains by its vibration caused the car to roll down the bank upon the child Amos, causing his death. Elihu caught his younger brother, and drew him out of danger. Elihu testified that the car "looked kind of queer to be perched up on the side of the grade with the bottom up." Missoula is a city of about 8,000 people. The accident occurred within the city limits, at a point where the right of way was open and not fenced off from the streets. Prior to the boy's injury two men had gone on the right of way to look at the car. One testified: "I was curious about it, whether the car had been dumped off the track, or whether it had been thrown off. I walked over and took a look at the car. It was out of curiosity, because it was an unusual thing for them to dump a car around there. I believe they had burned one before that. It was not the unusual appearance of the car that caused me to go over to look at it. It was an unusual thing for a car to be dumped there." The other said "Going down that way at noon, I noticed this car lying in a position. It was standing up and down the bank, and, of course, I wondered how much of a push it would take to push it down. Didn't pay any further attention, noticed the position it was lying in on the side of the bank." In addition to the foregoing, one Storer testified: "Walked past the car on the day before the accident. It was set up on edge, on the side of the embankment on the north side of the railroad track; set down on the edge of the grade. I thought it would be easily pushed over or pushed down; wondered it did not fall, and thought I would not like to walk down under it, anything of that kind; thought it might fall on a man pretty easy. I did not pay much attention to it any more than I just stopped and looked at it." At the close of plaintiff's case defendants moved for a nonsuit upon the following grounds:

"(1) That it appears from the evidence, and it is admitted by the plaintiff in his reply, that at the time when the deceased was killed he was upon the premises of the defendant railway company.

"(2) That there is nothing to show, nor is it alleged, that the defendant knew that the deceased was exposed to any peril, or that they knew of his presence upon the premises of the railway company; and, under the decision in the case of Driscoll v. Clark, 32 Mont. 172, 80 P. 1, 373, there could be no recovery even if the defendants had known of his peril, or known of his presence upon the premises of the railway company, or possessing such information had neglected to inform him.

"(3) That, while it is alleged in the complaint that the car or the body of the car that was thrown upon and caused the death of deceased was especially alluring and attractive to children, there is no evidence in this case that it was especially or at all attractive or alluring to children, or that the vicinity of said car was frequented by children; nor is there any evidence that the defendants or either of them knew or had reason to suppose that children were or would be attracted by the presence of said car upon the right of way of defendant railway company.

"(4) That it has not been made to appear that the deceased was incapable of appreciating whatever danger there was from the presence of the car upon the embankment.

"(5) The evidence directly shows that the deceased did not go in the vicinity of the car because allured or attracted thereto but he and his brothers went there for the purpose of procuring wood.

"(6) There is no pleading in this case sufficient to sustain a recovery on the theory that the deceased was rightfully on defendant railway company's land by either invitation or license.

"(7) There is no evidence sufficient to warrant a recovery on the last-named theory."

This motion was overruled. The jury returned a verdict for the plaintiff, and the court entered judgment on the verdict. From that judgment, and also from an order denying a new trial, defendants appeal.

At the outset we may eliminate from consideration the matters contained in paragraph 5 of the motion for a nonsuit, because, in our judgment, the evidence fails to show that the boy who was killed went upon the right of way at this particular time for the purpose of procuring wood.

The following is the respondent's contention in his printed brief: "The plaintiff is entitled to recover under either of the following theories: (1) Though Amos M. Gates, deceased, was a trespasser, the plaintiff is entitled to recover upon the ground that defendants willfully, recklessly, and wantonly left said car in its condition, position, location, and situation that the child's death was caused by the willful, wanton, or reckless acts of defendants. (2) That the car in its condition, position, location, and situation was so especially and unusually calculated to allure and attract children and Amos M. Gates, deceased, that he came to the place of injury by the invitation of defendants."

The appellants contend that the court erred in denying the motion for a nonsuit, and in overruling their motion for a new trial. No claim is made that the parents of the child were negligent, and no fault is found with the instructions given to the jury. The appellants present the case thus: "By the record in this case there is presented the question how far the doctrine of the so-called 'turntable cases' is to be extended and applied in this court." The respondent in the quotation from his brief heretofore made seems to base his right to recover upon two different propositions or theories. He cites no cases in support of what may be termed his first contention, except Driscoll v. Clark, 32 Mont. 172, 80 P. 1, 373, where this court held that the complaint should have alleged either that there was an actual invitation to children to play about the machinery, or that it was so especially and unusually attractive to them that it constituted an implied invitation and the case of Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 P. 831, where it was decided that the defendants owed to the plaintiff, as they did to any other trespasser, the duty to refrain from any...