Jepsen v. Gallatin Valley Ry. Co.

• Decision Date: 10 February 1921
• Docket Number: No. 4238.,4238.
• Parties: JEPSEN v. GALLATIN VALLEY RY. CO.
• Court: Montana Supreme Court

59 Mont. 125

JEPSEN
v.
GALLATIN VALLEY RY. CO.

No. 4238.

Supreme Court of Montana.

Feb. 10, 1921.

Appeal from District Court, Gallatin County; Ben. B. Law, Judge.

Action by A. M. Jepsen against the Gallatin Valley Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. S. Hartman, of Bozeman, and H. H. Field, of Chicago, Ill., for appellant.

C. E. Carlson, of Bozeman, for respondent.

COOPER, J.

This is an action to recover damages for personal injuries sustained by the plaintiff while traveling as a passenger on a freight train of the defendant between the stations of Ingomar and Bozeman, in this state.

On July 27, 1916, at Ingomar, the plaintiff loaded a horse into a box car for shipment to Bozeman. The car was placed in one of the regular freight trains on defendant's main line. After paying the freight and executing the shipping contract, the plaintiff inquired of the station agent if he would be allowed to ride in the car with the horse on the contract, in response to which the agent stated that he was not entitled to ride on the contract, but could ride in the freight car with the horse if he bought a ticket or paid cash. Without buying a ticket, the plaintiff boarded the car in which his horse was being carried. Soon after the train started, the conductor came into the car, and asked plaintiff for his ticket. The plaintiff replied that he had not purchased a ticket, handed the conductor a dollar, and received some small silver in change. Obeying the directions of the conductor, the plaintiff, at Melstone, purchased a through passenger ticket to Bozeman, paying $7.35 therefor, returned to the car and continued to ride therein until the train arrived at the station of Three Forks. There the car was set out, the horse fed, watered, and allowed to rest. The conductor and other trainmen all the way knew the plaintiff was riding in the box car, and assisted him in watering the horse and also in getting into the box car at points along the route. The plaintiff, some eight years prior to the trial, had suffered the loss of his right foot, and was wearing an artificial one, although, as he testified, that fact was hardly noticeable. At Three Forks the train was made up for the last leg of the journey to Bozeman, and consisted of nine freight cars and a caboose. On the order of the conductor, the box car containing the horse was placed next to the engine. The plaintiff got into the caboose and the train pulled out of Three Forks. Soon after getting on the way, the conductor took up the plaintiff's ticket, and informed him that he had closed the door of the box car because he was afraid the sparks from the engine would set fire to the straw bedding under the horse. According to the plaintiff's testimony, he told the conductor it would be too warm in the car for the horse with the door closed, responding to which the conductor stated:

“The next stop, what is the matter with your going over and opening it up and riding in there with the mare and keeping the fire out of the car?”

The conductor's testimony upon this point is that he asked the plaintiff if it would be too warm in the car for the mare with the door shut, to which the plaintiff replied that he did not think so; that he did not know when the plaintiff left the caboose and entered the box car, but that a station or two afterwards he saw him in there. The day was sultry, and according to the plaintiff's testimony, when he reached the freight car the mare was sweating, and her bedding was piled up under her. At Camp Creek station the fireman assisted the plaintiff in watering the mare, the plaintiff remarking to the fireman:

“They have got my car next to the engine, and I have to ride in it to keep the fire out.”

At the station of West Gallatin the train stopped about 15 minutes to unload freight. In again getting under way, the engineer started the engine suddenly, which had the effect of making the drivers slip, and to jerk and jar the car in which the plaintiff was riding so violently that he was thrown against the jamb of the side door of the car, thence onto the floor and under the wheels where the foot of his left leg was crushed, requiring its amputation. The plaintiff characterized the jerk as exceedingly violent--the worst he ever experienced-- and stated that in his opinion the cause of the sudden jerking of a train is the taking up of the slack between the cars and the way the train is handled by the engineer. The members of the train crew differed from the plaintiff as to the cause of the jerking and its effect in this particular instance, stating that the jar in the caboose was slight.

The complaint alleges that the plaintiff was a passenger upon the train, and occupied the frieght car at the instance and request of the defendant, with its full knowledge and consent “and under due authority given him by the defendant and its agents”; that while he was so occupying the car, the defendant, its agents, servants, and employees who were acting in its management, negligently, carelessly, and recklessly caused the train and the car the plaintiff was so occupying to be suddenly jerked, jolted, jarred, and snubbed up with great and unnecessary, extraordinary, unusual force and violence, throwing the plaintiff from the car onto the ground and under the car wheels, crushing, mangling, and injuring his leg and foot at a point below the ankle, requiring amputation.

The defendant by its answer denied all the charges of negligence upon its part and alleged affirmatively that the plaintiff was a passenger in a restricted and modified sense only; that he was upon the freight train by reason of the fact that he was the owner of the mare then being transported and undertook to feed and water her in transit; that notwithstanding the fact that he had agreed to ride in the caboose attached to the train while in motion, whether at or between stations, and not expose himself to danger by getting on or off moving trains, he unnecessarily and voluntarily, upon the occasion of the stopping of the train at West Gallatin Station on defendant's road, went forward and rode in the freight car in which the mare was being carried, without the knowledge of the defendant or any of its agents, in which situation he sustained the injuries complained of. In its second defense, the defendant pleads failure on plaintiff's part to present his claim for damages within the four months prescribed in the contract, and also the limitation of recovery for injury to his person happening upon its trains, cars, depot grounds, or yards to the sum of $500. The truth of the answer is denied by the replication.

At the close of all the testimony, the defendant moved for a directed verdict, insisting that there was no evidence showing gross negligence on its part or any of its agents, servants, or employees, nor any evidence in the record that the defendant, its agents, servants, or employees, negligently, carelessly, or recklessly caused the train or the car in which the plaintiff was riding to be jerked, jolted, or snubbed up, with great, unnecessary, extraordinary, or unusual force or violence, causing the injury to plaintiff; that the injury was caused by plaintiff's own negligence and carelessness; and because the undisputed evidence shows that the plaintiff was the owner and the person in charge of the horse being transported pursuant to the contract of shipment, and that he was injured while in charge of the animal, and that the injury occurred more than four months before the bringing of the action; and for the additional reason that the contract provided that the defendant should not be liable to the owner or person in charge of the horse for injury to his person in an amount exceeding $500, and that plaintiff could not recover on the hypothesis that the defendant or its agents, servants, or employees were guilty of negligence, gross or ordinary; that the undisputed evidence shows that the plaintiff was injured while riding in the car in which the horse was being shipped, in violation of the eleventh paragraph of the contract of shipment, by which he had agreed to ride in the caboose.

The only errors appellant assigns are the refusal of the district court to direct a verdict in its favor and to grant its motion for a new trial. The grounds upon which it bases its contentions are: (1) There was no evidence of negligence sufficient to sustain the verdict. (2) There was contributory negligence on the part of plaintiff which directly caused his injuries. (3) The plaintiff failed to present his claim for damages within the four-month period limited by the shipping contract. (4) Under paragraph 9 thereof, his recovery is limited to the sum of $500.

Appellant's argument is that the plaintiff had all the rights of a passenger under his ticket, so long as he remained in the caboose; that he was not a trespasser while riding in the car with his horse, but that he was there at the time of the accident for the purpose of caring for the mare, with the knowledge of the conductor; that while so traveling he occupied the position of a caretaker, being carried free for the purpose of looking after his property, and waived the protection the caboose would have afforded him had he remained there; that by riding in the car he accepted the benefit of the shipping agreement as supplemented by the consent of the conductor, and should be bound by its terms.

The first assignment of error impeaches the sufficiency of the evidence of negligence on the part of the defendant. The plaintiff upon the trial testified in support of all the essential allegations of the complaint and convinced both the trial court upon a motion for a directed verdict and the jury upon the trial that the accident was caused by the negligence of the defendant, and that the plaintiff was not guilty of contributory negligence in riding in the car with the mare. Upon the motion for a new trial, the district court...