Jonosky v. Northern P. Ry. Co.

Decision Date02 January 1920
Docket Number4066.
Citation187 P. 1014,57 Mont. 63
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Joseph Jonosky, as administrator of the estate of Chester Jonosky, deceased, against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss.

Walker & Walker, of Butte, and Gunn, Rasch & Hall, of Helena, for appellant.

Harry Meyer and Wm. Meyer, both of Butte, for respondent.


Immediately east, south, and west of its passenger station in Butte are the yards owned and operated by the Northern Pacific Railway Company. Through these yards, running from east to west, are the main line tracks and some 20 or more tracks parallel thereto, with the necessary connecting switches. These tracks are in constant use in moving trains through the yards, in storing cars, in making up and breaking up trains, in moving cars to and from warehouses and to and from loading and unloading spurs. Several city streets, including California avenue, extend from the north to, and terminate at, the north line of the yards. Some distance south of the yards there is a considerable number of houses occupied by people not connected with the business of the railway company. These houses are within the city limits and occupy regularly laid out lots and blocks, the blocks being separated by streets running north and south which bear the same name as the streets north of the yards. On Harrison avenue, at the east end of the yards, there is a public street crossing, and at the west end, on Kaw avenue, there is another. Between these two streets, a distance of approximately 200 rods, there is no public highway, street, or other thoroughfare across these yards.

On the afternoon of April 19, 1916, about 30 freight cars, all coupled together, were standing on track 11 in the yards. The two cars farthermost to the west were immediately west of the west line of California avenue extended to the south; the east end of the string of cars being about 1,100 feet farther east. In the course of business it became necessary for the railway employés to remove the twelfth car from the east end of the string of cars, and to effect this purpose a locomotive backed onto the east end of track 11 and against the easternmost car of the string with sufficient force to cause the coupling to be made automatically, and this force drove all the cars to the west 3 or 4 feet. Just at the instant of the impact Chester Jonosky, a minor, was crawling under the coupling between the second car and third car from the west end of the string of cars. The car wheel of the third car passed over his left leg and injured his right leg. As the result of these injuries, the boy died a few hours later, and this action by the administrator of his estate was brought to recover damages.

It is alleged that for more than a year prior to the accident children as well as adults were permitted by the railway company to cross and recross the tracks, particularly at a point where California avenue on the north, if extended would connect with California avenue south of the yards; that the custom of the people was known to the railway company and acquiesced in without objection, and by reason thereof the duty was imposed upon the company to exercise reasonable care to keep a lookout for children who might be crossing the yards, and to give appropriate warning of its intended movements of cars; that it failed in both respects; and that the death of the boy was caused proximately by the failure of the railway company to discharge this duty. The answer is substantially a general denial.

Witnesses in behalf of the plaintiff testified that for a considerable period prior to the injury the people living south of the tracks had habitually traveled back and forth across the yards as a short cut to, or convenient means of reaching points north of the yards and to avoid the longer route by way of the public crossing; that this custom was known to the railway company and suffered to prevail without objection, so far as the witnesses knew, and one witness, a schoolgirl testified that on two or three occasions employés of the company had assisted her in getting between coupled cars standing in the yards.

There is not a suggestion in the evidence that a walk had been constructed across the track, that the travel had followed any well-defined route over the tracks, that the yards could be used by these people without materially interfering with their proper use by the company, or that the company had in any manner held out to these people or induced them to believe that the yards could be crossed in safety, or that it was intended to permit the use of any portion of the yards, or the yards in their entirety, as a public crossing, but, on the contrary, the employés of the company working in the yards testified in effect that every reasonable effort had been expended to prevent the use of the yards by these people and particularly by children, that appeals had been made to the police department and to the school authorities to assist in keeping children out of the yards, and in this they were corroborated by the chief of police and the truant officer.

Upon the trial, and over defendant's objection, the court instructed the jury that, as to licensees, the railway company owed the duty to exercise reasonable care in the management and running of its trains to protect them from injury and refused defendant's offered instruction to the effect that, as to licensees, the company was under no duty to keep a lookout or give warning of the intended movement of cars in the yards. The trial resulted in a verdict for the plaintiff, and from the judgment entered thereon, this appeal is prosecuted.

Counsel for appellant contend that the boy was a trespasser, or, at best, a licensee. Counsel for respondent insist that he was a licensee, and for the purpose of this appeal he will be treated as such. The two instructions above, then, fairly present the conflicting views of the respective parties upon the law governing this case.

The action is grounded in the alleged primary negligence of the railway company, and does not involve any element of the last clear chance doctrine, or the doctrine of attractive nuisances.

Actionable negligence arises only from a breach of legal duty ( Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, 163 P. 473, Ann. Cas. 1918B, 420), and therefore, to determine the correctness of the theory upon which this case was submitted, it is necessary to determine just what legal duty the company owed to Chester Jonosky at the time he was injured. If it owed him the primary duty to keep a lookout and give warning of the intended movement of cars in the yards, then this judgment should be affirmed; if it did not, plaintiff has no cause of action.

Decided cases almost without number may be found which assume to define the legal relationship existing between a railway company and a person injured on its tracks. These cases cover every gradation of the relationship from that existing between the company and its employé rightfully in the position, in the discharge of his duties, to that existing between the company and a naked trespasser on the tracks without the semblance of right. In a few jurisdictions no distinction is drawn between the measure of duty owed by the company to its employé, on the one hand, and the trespasser on the other; but these cases are exceptional. In Arkansas and Tennessee, and possibly in other states, this rule is established by statute. With the exceptions noted, it may be said that the rule is universal that as to a trespasser the company owes no primary duty. Its duty is of a negative character-to refrain from wantonly or willfully injuring him after discovering his presence in a position of peril. Passing to a consideration of the duty owed to a licensee, however, we enter a veritable maze of...

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