Gordon v. Northern P. Ry. Co.

• Citation: 104 P. 679,39 Mont. 571
• Parties: GORDON v. NORTHERN PAC. RY. CO. et al.
• Decision Date: 08 November 1909
• Court: United States State Supreme Court of Montana

104 P. 679

39 Mont. 571

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

Supreme Court of Montana

November 8, 1909

Appeal from District Court, Broadwater County; W. R. C. Stewart Judge.

Action by Clifford Gordon against the Northern Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellants.

Walsh & Nolan, for respondent.

HOLLOWAY J.

In May 1905, the plaintiff, Clifford Gordon, was employed by the Northern Pacific Railway Company, at Townsend. His employment required him to look after locomotives standing in the yards to keep the fires burning, and to keep sufficient water in the boilers. In order to determine the quantity of water in the boiler, every locomotive is supplied with a water gauge. This gauge is a glass tube with appropriate fastenings and connections, and indicates the amount of water in the boiler. The plaintiff's employment required him to make a visual examination of this water gauge at intervals, and, while making an examination on one of the locomotives left in his charge on May 10, 1905, the water gauge exploded, to use the language of the complaint, and fragments of glass struck the plaintiff in his right eye and destroyed the sight. He brought this action against the railway company and A. B. Ellis, the engineer who brought the locomotive in question into the Townsend yards immediately before plaintiff was injured. It is charged that it was the duty of the railway company to provide a guard for the water gauge, so that, in case of the accidental breaking of the glass tube, injury to any one whose duty it was to be about the gauge would not likely result. It is likewise charged that it was the duty of the engineer to see that such guard was in place, but that, in disregard of such duty, this locomotive in question did not have any guard for the water gauge. The issues presented the questions of negligence on the part of the defendants, and contributory negligence and assumption of risk on the part of the plaintiff. The trial resulted in a verdict and judgment in favor of the plaintiff, and, from the judgment and an order refusing defendants a new trial, these appeals are prosecuted. While there are several specifications of error, they raise but two questions of serious moment.

1. That part of the complaint descriptive of the injuries received by plaintiff is as follows: "*** Glass flying at random struck the right eye of the plaintiff, inflicting injuries thereon which resulted in the complete destruction of the sight of said eye, and which injuries occasioned excruciating pain, all to his damage in the sum of ***." Upon the trial the plaintiff introduced evidence, over the objection of the defendants, that, as a result of the injury to his right eye, the sight of his left eye was greatly impaired. Counsel for respondent urge upon us three reasons in support of the court's ruling:

(a) It is argued that the damages arising from the evil results to the left eye are general damages, and evidence of them can be introduced without specially pleading the fact of such resulting injury. While the authorities are not always careful in the selection of terms by means of which to express the rules governing general and special damages, the rules themselves are uniformly recognized, and for the purpose of securing fair statements of them it is not necessary to go beyond the authorities cited by counsel for respondent. In opening their argument upon this branch of the case, they say in their brief: "The rule generally recognized is staled as follows: 'All damages that necessarily flow from the injury complained of may be recovered without special averments; but such as are merely the natural or proximate, but not the necessary, result, must be specially averred."' 5 Current Law, p. 932. One of the cases cited by respondent is Montgomery v. Lansing City Electric Ry. Co., 103 Mich. 46, 61 N.W. 543, 29 L. R. A. 287, wherein reference is made to the rule as stated by Chitty, as follows: "Whenever the damages sustained do not necessarily arise from the act complained of, and consequently are not implied in the law, in order to prevent surprise of the defendant, which otherwise might ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it." 1 Chitty on Pleading (16th American Ed.) *p. 411. Another case relied upon by respondent is Louisville & N. R. Co. v. Dickey, 104 S.W. 329, 31 Ky. Law Rep. 894, wherein the rule is taken from Greenleaf, as follows: "Those which necessarily result are termed general damages, being shown under the ad damnum, or general allegations of damages, at the end of the declaration; for the defendant must be presumed to be aware of the necessary consequences of hts conduct, and therefore cannot be taken by surprise in the proof them. *** But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages, which the law does not imply; and, therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial." Greenleaf on Evidence (16th Ed.) § 254. And also from the Encyclopedia of Pleading and Practice, as follows: "Special damages, which are the natural but not the necessary result of the injury complained of, must be specifically pleaded. Such injuries do not necessarily result from the defendant's wrongful act, but flow from it as a natural and proximate consequence. Hence they must be specially alleged in order that the defendant may have notice thereof and be prepared to meet the same upon the trial." 5 Ency. Pl. & Pr. 719. As shown by these authorities, it is not enough that the resulting damage to plaintiff's left eye followed, in point of time, the injury to his right eye; nor is it sufficient that such damage was the natural result of the injury. In order to admit proof of such damage, without specially pleading it, it was necessary for plaintiff to show that such damage was the necessary result of the injury to his right eye, and this he failed to do.

(b) But it is said: "The court takes judicial notice of the laws of nature (section 7888, Rev. Codes), and will take judicial notice of the fact that the destruction of the sight of one eye impairs the powers of vision, and that there is such a relationship between the eyes that the destruction of the sight of one necessarily affects to some extent the use of the other." Of course, this court takes judicial notice of the laws of nature, and, this being the major premise of counsel's...