Jorgenson v. Butte & Montana Commercial Co.

• Decision Date: 05 September 1893
• Citation: 34 P. 37,13 Mont. 288
• Parties: JORGENSON v. BUTTE & MONTANA COMMERCIAL CO.
• Court: Montana Supreme Court

34 P. 37

13 Mont. 288

JORGENSON v. BUTTE & MONTANA COMMERCIAL CO.

Supreme Court of Montana

September 5, 1893

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

Action for personal injuries by H. C. Jorgenson against the Butte & Montana Commercial Company. From a judgment of nonsuit directed by the court, plaintiff appeals. Affirmed.

F. C Park, for appellant.

Arthur J. Shores, for respondent.

PEMBERTON C.J.

This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the 20th day of March, 1891, while engaged at work handling heavy plank on the third story of respondent's said mill, he fell to the floor below, breaking his leg; that his fall, by which he was so injured, was caused by the incompetency, lack of skill and knowledge, of one Harlander, a colaborer who was engaged in assisting him in his work; that defendant knew of the incompetency of the said Harlander, and appellant did not. The complaint further alleges that defendant employed as it was bound to do under its contract with appellant surgeons to treat his broken climb; that these surgeons so carelessly and unskillfully treated his leg, and were; so negligent in nursing and caring for appellant during his sickness, that it became and was necessary to amputate the leg of appellant in order to save his life; that the want of skill and liability of said surgeons was known to the respondent at the time, and unknown to appellant; that defendant was guilty of negligence in the employment of said unskillful laborer to assist appellant in his work on said building, and in the employment of unskillful and negligent surgeons to treat and nurse him. The appellant testified to the fact of his falling, how it occurred, and the result. He attributes his fall to the incompetency of Harlander. As to the manner of his treatment by the surgeons and nurses, his evidence is unreliable, as he admits that a great part of the time he was unconscious. Besides, his testimony does not show any knowledge of these matters. He was manifestly not supported by the testimony of his other witnesses as to the material facts in his evidence. Harlander, the man appellant says was assisting him at the time he fell, and to whose incompetency appellant attributes his fall and injury, swears he was not helping appellant at the time he fell and was injured; that the appellant was working alone at that time. H. L. Smith, another witness for appellant, testified as follows: "I talked with him [appellant] about this fall. He said he slipped and fell, and said nobody was to blame for it but himself." The appellant testified that at the time he fell he was using a pevee in handling and moving the planks. Beecher, a witness for appellant, testified that he was a carpenter, at work on the same building with appellant at the time he fell; that appellant was using a pevee; that he considered it safer working where appellant was without a pevee; and that the superintendent had given all the men instructions not to use a pevee in work like that in which appellant was engaged. The evidence offered by the appellant as to the negligence and want of skill of the surgeons who treated him is vague, and far from being satisfactory. It is true the appellant testified to some apparent neglect and want of care during his sickness; Smith, a witness for appellant, testified that he assisted in taking care of the appellant part of the time; talked to him about his condition; that he did not complain at any time of how he was treated; that there was no lack of attendance at any time. The surgeon who treated him testified to proper treatment and care of appellant. Although there is some evidence of unprofessional witnesses which might be construed into meaning that there was some want of care, yet on the whole the evidence seems to show that as good care as the circumstances would admit of was bestowed upon appellant. There is no evidence showing that the surgeons employed to treat appellant were not skilled and learned in their...