Hollenback v. Stone & Webster Engineering Corporation
| Decision Date | 28 January 1913 |
| Citation | 129 P. 1058,46 Mont. 559 |
| Parties | HOLLENBACK v. STONE & WEBSTER ENGINEERING CORPORATION ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Action by Matilde Hollenback against the Stone & Webster Engineering Corporation and another. Judgment for plaintiff against defendant Stone & Webster Engineering Corporation, and it appeals. Affirmed.
Day & Mapes and John G. Brown, all of Helena, for appellant.
O. W McConnell, of Helena, for respondent.
This is an action for damages for death by wrongful act. The plaintiff, the mother of the deceased, alleges that she is the sole surviving heir at law of John Hollenback, and that at the time of his death she was altogether dependent upon him for her support. At the time of the accident John Hollenback, a minor about 19 years of age, was employed by the defendant Stone & Webster Engineering Corporation as fireman for a hoisting engine, at a time while the dam was being constructed across the Missouri river at Hauser Lake. A large force of men was employed, and the work prosecuted continuously. The works and grounds adjacent were lighted and certain power machinery was driven, by electricity furnished from Canyon Ferry and carried to Hauser Lake over high-tension lines to a power house, where it was stepped down to the voltage required. The waters of the Missouri river had been turned from the natural channel through a flume, and on account of seepage and leakage from this flume the water would continuously rise in the river bed below the dam at the point where the engine upon which young Hollenback was employed was situated, necessitating the use of force pumps to keep the water out of the way. The pumps were located upon a scow, some 60 or 70 feet from Hollenback's engine, and were operated by electrical power. The engine about which Hollenback was employed was partially inclosed in a small frame shed situated immediately below the dam, and almost surrounded by the dam, the river bank, and a large pile of dirt.
These obstructions so far cut off the light from the engine shed that it required artificial light, not only during the nighttime, but late in the morning and early in the evening as well. To meet this demand, wires were strung from the power house, by way of the pump scow, to the engine shed, and light supplied by means of a cluster of four lamps. At the point where these wires left the pump scow, there was a switch, by which the current to the engine shed could be cut off. These light wires carried 440 volts, and led into the engine shed at the height of six or seven feet above the ground and a few inches from the engine shed doorway. On the night of April 28th the high-tension power lines from Canyon Ferry became disabled, resulting in the lights being extinguished and the pumps stopped. As soon as the pumps ceased working, the river bed about young Hollenback's engine began to fill with water. When Hollenback reported for work about 7 a. m. of April 29th, he found his engine surrounded by water, and the water so high in and about the engine shed that work with the engine was impossible; and the water continued to rise thereafter for some considerable time. Hollenbeck and Purcell, the day engineer, gathered up some of the tools about the engine and carried them to a place of safety. Purcell then suggested that they wait upon the river bank until they could see Gohrmley, the supervising engineer, and report to him. After waiting some 20 minutes or more, Hollenback started away, and, in answer to Purcell's inquiry, said that he was going down to the engine. Purcell suggested that it was not necessary, as he could not do anything down there; but Hollenback continued down to the water's edge, where he constructed a raft, got upon it, and made his way towards the engine shed. When six or seven feet from the shed door, he came to the light wires running from the pump scow to his engine shed. These wires were then only eighteen inches or two feet above the surface of the water. Hollenback took hold of one of the wires to pass under it, and was electrocuted. Gohrmley, the supervising engineer, was made a party defendant.
The plaintiff charges negligence on the part of defendants in failing to exercise reasonable care to provide young Hollenback with a reasonably safe place in which to perform his work, and the following particulars are specified:
The defendants admit the employment of deceased and his death, but deny any negligence on their part, and plead contributory negligence on the part of the deceased. The affirmative allegations of the answer were put in issue by reply. The trial of the cause resulted in a verdict and judgment in favor of plaintiff and against the defendant Stone & Webster Engineering Corporation for $18,000 and costs. From that judgment and an order denying it a new trial, the corporation defendant appealed.
1. It is urged that the complaint does not state facts sufficient to constitute a cause of action, because it does not negative the idea that Hollenback's death resulted from his own act, and the rule announced in Kennon v. Gilmer, 4 Mont. 433, 2 P. 21, and reiterated in Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454, 104 P. 543, is invoked here. In each of those cases the injured party jumped from a moving vehicle, and the injury resulted directly from the act. This court, speaking of a complaint which showed these facts affirmatively, said, "Thus the plaintiff declares that the proximate cause of the injury he sustained was his own action." It is the general rule in this state that contributory negligence is a matter of defense, and that "the existence of contributory negligence need not be negatived in the complaint, unless it appears from other allegations therein that the proximate cause of the injury was the act of the plaintiff." Orient Insurance Co. v. Northern Pacific Ry. Co., 31 Mont. 502, 78 P. 1036. The complaint in the present instance charges: "That the said John Hollenback, on the said 29th day of April, 1910, while so working and in the employ of the defendants, came in contact with the said live wire so negligently and carelessly strung and placed by the defendants, by reason whereof the said John Hollenback was electrocuted." We do not think that it can be said to appear affirmatively from this allegation that the proximate cause of Hollenback's injury was his own act; and therefore the case is not within the exception declared in Kennon v. Gilmer and Badovinac v. Northern Pacific Ry. Co., above.
2. Complaint is made that counsel for plaintiff discussed to the jury the effect of certain evidence, and argued that the defendants were guilty of negligence with respect to acts not charged in the complaint to be negligent acts. It is sufficient to say that the evidence went in without objection, and was before the jury. There was not any request made that it be withdrawn or its effect limited by instructions.
3. It is claimed that the verdict is excessive. Section 6486, Revised Codes, provides that in a case of this character "such damages may be given as under all the circumstances of the case may be just." If it is possible from the evidence in this record to account for the amount of the verdict, then this court ought not to interfere. Yergy v. Helena Light & Ry. Co., 39 Mont. 213, 102 P. 310, 18 Ann. Cas. 1201; Helena & Livingston S. & R. Co. v. Lynch, 25 Mont. 497, 65 P. 919. Under the statute the amount of the verdict must, of necessity, rest in the sound discretion of the jury. The parties are entitled to a verdict from the jury; and it is only in rare instances that the court is justified in interfering, unless the record discloses that the elements of passion and prejudice have influenced the minds of the jurors in arriving at the result.
There is not any complaint made of the instructions given, which advise the jury of the measure of plaintiff's recovery and the circumstances to be considered in arriving at the amount which, in the judgment of the jurors, would be just. Assuming, without deciding, that the rules announced in those instructions are correct, the plaintiff was entitled (1) to all the wages of the deceased until he became...
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