Hamilton v. Great Falls St. Ry. Co.

Citation17 Mont. 334
Case DateDecember 16, 1895
CourtUnited States State Supreme Court of Montana

17 Mont. 334

CO. et al.

Supreme Court of Montana.

Dec. 16, 1895.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Lizzie Hamilton against the Great Falls Street-Railway Company and others for personal injuries. Judgment for plaintiff, and defendants appeal. Modified.

Action to recover for personal injuries. The defendant is a corporation, operating an electric street-railway line in Great Falls. After the formal allegations concerning the defendant's corporate existence, etc., the complaint alleges that the cars of the company, at the time of the accident, consisted of an observation car, with seats for passengers only, and open at the sides and front, which car was attached to a motor, and the motor was operated by an employé termed a “gripman,” and that the motor cut off and obstructed the view of the passengers upon the observation car down the defendant's track; that the track was a single one, operated by means of switches; that the defendants Sibbett and Oslund were gripmen; that, on July 15th, plaintiff, with her child, was a passenger on an observation car of one of the defendant's trains then travelling eastward on Central avenue; that she occupied the right-hand front seat in the observation car; that the train proceeded along the railway track to a point on Ninth street, about opposite Third avenue north, and that a second train of defendant, consisting of a motor and an observation car, which was then coming in an opposite direction, or towards Central avenue, upon said track, “at a point about midway between two of defendant's switches, upon its said single track, and through the negligence, carelessness, and recklessness of the said defendant and its said gripmen in negligently, carelessly, and recklessly failing to switch ‘each of said cars' to await the passage of the other, forcibly and violently collided into each other, derailing one of said cars,” and that, by reason of the shock and collision, plaintiff was violently thrown from the car she was in, striking upon her head, shoulder, and side; she was rendered unconscious, sustained severe bruises about the head and neck, and the muscles of the back, and suffered bruises and injuries in her right side, and sustained permanent injuries and displacements of the uterus and other internal organs; that prior to the collision she was thoroughly healthy, but she has suffered great mental and bodily pain since the accident, has been afflicted with nervous prostration, suffered a loss of flesh, and still suffers from bodily and mental pain by reason of the injury to her womb; and that such injury is probably incurable; and that she will suffer physically and mentally therefrom during the balance of her natural life. She prayed for $25,000. The answer denied specifically the averments of the complaint. The denial of the particular allegation of negligence was as follows: “They deny that either or any of defendants was or were guilty of negligence in failing to switch said train, or either of them, or otherwise; deny that through the negligence or carelessness of the defendant corporation, or either of its codefendants, in negligently or carelessly or recklessly failing to switch each, either, or any of said cars or trains to await the passage of the other, or that any recklessness or negligence or carelessness whatever of defendants, or any or either of them, caused said cars or trains to forcibly or violently, or otherwise, collide into each other, or that defendants, or any of them, were guilty of any negligence whatever in the premises, or that said cars, or any cars, violently or otherwise, collided together; and deny that one or any or either of said cars was or were derailed,” etc. The defendant alleged that any uterine troubles plaintiff might have existed prior to the collision, and denied that plaintiff received any injuries at all by reason of any negligence on defendant's part, or that any of her injuries are incurable, or that her health has been in any way impaired or injured by any act or omission of defendant. The replication denied that the internal and other injuries of plaintiff occurred or existed at all prior to the time of the accident. The case was tried with a jury, who awarded plaintiff $20,000 damages. The appeal is from the judgment, and from an order denying the defendants' motion for a new trial.

Cooper & Piggott, for appellants.

Toole & Wallace and Leslie & Lowning, for respondent.

HUNT, J. (after stating the facts).

The record in this case does not conform to the rules of the court. The index is wholly insufficient, in not referring to the specifications of error, or to the testimony of the various witnesses, or to the instructions, or other matters necessarily examined in determining the case. Much of the testimony is not reduced to narrative form, as it should be, and the court has been put to labor that it ought to have had spared it, under the rules. But we will notice the errors relied on, in the order in which they are presented in appellants' brief.

1. A general demurrer was interposed to the complaint. The point made by the defendants is that the collision is alleged to have taken place between two switches, and that the defendant was guilty of negligence in that it failed to switch “each of its cars to await the passage of the other,” which is absurd. But we think that, when the various averments of the complaint are taken together, it is deducible therefrom that the defendant's track was a single one, with switches, and that, by the negligence of the gripmen to use the switches so that the cars might pass one another, they forcibly and violently collided with one another. The complaint was certainly ambiguous, uncertain, and unintelligible, but no demurrer was interposed on that ground. The general demurrer was therefore properly overruled.

2. It appeared from the evidence that defendant's line was a single track, running north on Ninth street, from its intersection on Central avenue; that there is a switch on Ninth street a few feet north of Central avenue, and another switch on Fifth avenue north, a few feet east of Ninth street, and that, going north, a car would strike a switch on Fifth avenue about 100 feet from the corner of Fifth avenue and Ninth street; that, between 4 and 5 o'clock of the afternoon of the accident, the defendant Sibbett was motorman and in control of the running of the train; that the collision occurred at a point a whole block or 600 feet away from where the motormen could see one another; that the car plaintiff was on was going at a rate of from 9 to 20 miles an hour; that the car coming was also coming at a very rapid rate; that, immediately after they struck, plaintiff was found lying on her right side, partly on her face, in the beaten roadway; that the car she was on was driven off the springs; the body was slightly off the trucks, and a portion of the springs was broken; that plaintiff was raised to her feet, and then walked, with some assistance, to a store. The plaintiff testified that she was 32 years of age, married, with one child, five years old; that she got on the car, and took the front seat; that she was sitting down, with her back towards the left side of the track; that the collision happened without any warning; that she felt the jar, and felt herself leaving the car; that the next thing she knew she was in a store; that she was numb all over, with pains in her leg and back; that, from the store where she went immediately after the collision, she went to her home, with the assistance of her brother-in-law; that she had fallen on her left side, felt pain after the accident in her left side, along down towards the back, and still occasionally feels such pain; that she is taking medicines now, and has felt a displacement of the womb as a result of the accident, and has been treated for that; has had headaches more or less since the accident, and that the womb trouble is continuous; that her memory is affected, and that she cannot sleep well since the accident; is nervous; has more acute pains if she stoops; feels stiff in the mornings; has not been able to do heavy household work since; that before the accident she had good health, and did all the household work; that she had been treated a few times by a physician before the accident,-once for miscarriage, once in childbirth, and once for a boil; that since the accident she has been irregular in her monthly periods; that, in hope of recovery she took a trip to California; that she has pains in her abdomen, at times acute, at other times not; that she weighed 105 pounds at the time of the trial, but that before the accident her weight was from 118 to 120 pounds; that she has been troubled with bladder difficulties since the accident, and constant constipation. Other witnesses testified that the collision was without warning; that the jar was severe enough to throw them onto the seats in front of them; that, directly after it occurred, the gripmen were quarreling with one another; that plaintiff was thrown out, and picked up in a dazed condition. Dr. Ladd, plaintiff's physician before and after the accident, stated that he had treated plaintiff some time before this accident, for two or three days, for a...

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