Johnson v. Chicago, M. & St. P.R. Co.

• Citation: 230 P. 52,71 Mont. 390
• Decision Date: 20 October 1924
• Docket Number: 5521.
• Parties: JOHNSON v. CHICAGO, M. & ST. P. R. CO.
• Court: United States State Supreme Court of Montana

230 P. 52

71 Mont. 390

JOHNSON v. CHICAGO, M. & ST. P. R. CO.

No. 5521.

Supreme Court of Montana

October 20, 1924

Appeal from District Court, Mineral County; Theodore Lentz, Judge.

Action by Sam Johnson against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant on directed verdict and plaintiff appeals. Reversed and remanded for new trial.

Frank & Gaines, of Butte, for appellant.

Murphy & Whitlock, of Missoula, for respondent.

HOLLOWAY J.

The plaintiff, an employee of the defendant railway company, was injured while in the discharge of his duties as section hand and brought this action to recover damages. He contends that he was required to work with a pick, the points of which had become so worn and dull that the use of it greatly increased the hazards of his employment; that about September 1, 1922 he complained to the foreman in charge, who promised to have it sharpened or to supply a sharpened pick; that he relied upon the promise and continued to use the defective tool; that on September 24, while engaged in an effort to split or chip off the top of an old tie, in order that it might be replaced by a new one, the pick, because of its dull condition, failed to penetrate the wood. but glanced off, striking a rock and dislodging particles of rock, some of which struck him in the face and eyes, causing the injury of which complaint is made. Upon the trial and at the conclusion of all the evidence the court directed a verdict for the defendant, and plaintiff appealed from the judgment dismissing his complaint. The correctness of the trial court's ruling sustaining defendant's motion and directing a verdict is the ultimate question before us.

Section 9364, Revised Codes, provides:

"Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto."

In the interpretation of that statute, this court has announced the following rules: (1) Upon a motion for a directed verdict in favor of the defendant, the evidence introduced by the plaintiff will be considered in the light most favorable to him and as proving whatever it tends to prove. (2) A cause should never be withdrawn from the jury, unless the conclusion from the facts follows necessarily, as a matter of law, that a recovery cannot be had upon any view which can be drawn reasonably from the facts which the evidence tends to establish. (3) In reviewing an order directing a verdict for the defendant, this court will consider only the evidence introduced by the plaintiff, and if that evidence, when viewed in the most favorable light, tends to establish the case made by the plaintiff's pleadings, the order will be reversed. Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871; Lehane v. Butte Electric Ry. Co., 37 Mont. 564, 97 P. 1038; Moran v. Ebey, 39 Mont. 517, 104 P. 522; Carroll v. King, 59 Mont. 403, 196 P. 996; Mitchell v. Northern P. Ry. Co., 63 Mont. 500, 208 P. 903; Long v. Davis, 68 Mont. 85, 217 P. 667.

The term "plaintiff's evidence," as employed in the foregoing rules, excludes merely a bare scintilla, but includes every fair inference which may be drawn from the facts proved and, as well, any evidence introduced by the defendant which tends to support the plaintiff's case. In considering the evidence before us, allowance must be made for the crude manner in which the witnesses expressed themselves. Plaintiff is an Albanian, his witness Miller is a Greek, and his witness Maros a foreigner also. As disclosed by the record, these witnesses had a very limited knowledge of the English language; but evidence is not to be weighed by the elegance of diction or the terseness of expression, but by its intrinsic worth.

The record discloses that the plaintiff went to work for the defendant as a section hand on the section at Drexel about the end of July, 1922; that Paulos was the section foreman; that, when the picks became dull from use, they were gathered up once a month and sent to the shops at Deer Lodge or Tacoma to be sharpened; that new or sharpened picks were delivered once a month by the supply car which came through about the 20th of every month; that, during the summer of 1922, there was a strike of blacksmiths at the shops, and new or sharpened picks were not delivered from June until December; that, when plaintiff went to work, the supply car had already passed this section for the month of July; that he knew when the car passed through in August, but did not know that the car had passed in September before he was injured, although it had done so.

Counsel for defendant insist that the evidence is insufficient to carry the case to the jury. They argue, first, that it does not disclose that the pick was in a defective condition, or, stated differently, that it was not in a reasonably safe condition. It is made to appear that a pick in a reasonably efficient condition has prongs which are from 8 to 10 inches long; that, at the time plaintiff went to work, all the picks in use on this section were somewhat dull, the points being about as thick as the end of a man's little finger; that by constant use they became much duller, so that at the time of the injury the prongs were only 6 or 7 inches in length, and the points as thick as the end of a man's thumb.

Miller testified that when a dull pick strikes a rock it causes more particles of rock to fly than will a sharp pick; that a blow from a sharp pick will cause the point of the pick to penetrate a tie, and it will not glance off.

Plaintiff testified that a sharp pick will not break a rock as much or cause particles of the rock struck to scatter as much as will a dull pick. He testified further:

"It was dangerous to work with those picks, because dull picks will fly large dirt up and no stick in tie."

And again:

"While working before at Drexel, it breaks a rock and hits me on the legs."

We think this evidence, with other evidence of like character in the record, is sufficient, if not contradicted, to justify a jury in finding that the pick was not in a reasonably safe condition for use, and that the use of it increased the hazards of plaintiff's employment.

Again it is contended that the evidence fails to disclose the proximate cause of plaintiff's injury It does appear that, at the time of his injury, plaintiff was in the discharge of his duties, removing old ties and replacing them with new ones; that he was using his pick, attempting to split or chip off the top of an old tie in order to remove it; that he struck three blows, the first two of which were ineffective for any purpose; that, when he struck the third blow, the pick failed to penetrate the tie, but glanced off, passed through a thin covering of fine dirt and struck something, with the result that a hard substance flew up, striking the plaintiff in the eye and causing a severe injury. On cross-examination, plaintiff testified:

"Don't know what hit me in the eye * * * something hard hit me in the eye."

Miller testified that immediately after the injury he examined the place where plaintiff's pick struck and discovered a rock which had been hit by a pick, the blow dislodging particles of the rock. Maros, who was working with the plaintiff at the time, testified:

"Sam [plaintiff] started to chip off the top, started chipping off tie two or three times and pick slip, hit rock, and rock was thrown over and hit him in the eye; I seen myself the rock, could tell it was hit. I see the mark on rock after he hit it. * * * Some rock flew by me but didn't hit me."

It is the rule in this jurisdiction, and elsewhere generally, that the proximate cause of an injury may be proved by indirect evidence (De Sandro v. Missoula L. & Ry. Co., 48 Mont. 226, 136 P. 711); indeed, more often than otherwise, it is a matter of inference from the facts disclosed by the evidence. Under almost identical circumstances, the Supreme Court of Iowa held this evidence sufficient to make out a prima facie case, and we agree with that conclusion. Swaim v. C., R.I. & P. Ry. Co., 187 Iowa, 466, 174 N.W. 384.

Again it is insisted that the evidence fails to show a sufficient complaint, a sufficient promise to repair, or a reliance upon the promise, if one was made. Plaintiff testified:

"Complained to Paulos about it being dangerous to work with that pick before and after I got hurt on the leg. * * * I told the foreman we got to have some tools, because the tools is kind of dangerous working like this. He say he ordered the roadmaster to send some to us. * * * The foreman told us to do the best we can. * * * He said this week or next week some time the picks will come. The foreman told me would have to wait for the supply car to get the picks. I said, I told him that the picks were dangerous. Danger would be somebody getting hurt because of the dull picks."

Paulos testified:

"All the men said that the tools are not suitable to work with. * * * Whenever the boys make that complaint, I told them that I had ordered picks, and was expecting them in the supply car. * * * In the month of August I made a requisition for some sharp picks. Every month I made that requisition."

In answer to the question, "What made you stay on and work with dangerous picks?" the plaintiff replied:

"He told me there come some more picks; I believed him, that is why I stayed. * * * Suppose Paulos had told me that we wouldn't get any new picks, I would quit."

In 4 Labatt on Master and Servant, section 1345, the rule established by the current of authority is stated as follows "When complaining of defective instrumentalities or machinery, it is not necessary that the servant shall state in exact words that he apprehends danger to himself by...