Kermon v. Gilmer

• Decision Date: 02 February 1882
• Citation: 2 P. 21,4 Mont. 433
• Parties: KERMON v. GILMER and Others.
• Court: Montana Supreme Court

2 P. 21

4 Mont. 433

KERMON v. GILMER and Others.

Supreme Court of Montana

February 2, 1882

Where a passenger is injured by his own act in jumping from a stage coach, through fear of an injury by reason of the violent conduct of the horses, no presumption of negligence arises from the accident itself; and if the complaint states that he so acted through fear of great bodily harm, without stating that he exercised the degree of care and prudence that a reasonable person would have exercised in the same circumstances, the complaint is defective as not stating a cause of action.

A suitor has a right to a full panel of 24 from which to first select a jury, such panel to be selected by the commissioners; and should the judge and sheriff select names from which to complete the panel, a challenge to the array therefore should not be overruled.

From Second district, Deer Lodge county.

Robinson & Napton, for respondent.

Stephen De Wolfe, for appellant.

CONGER J.

This action was for injuries received by the plaintiff while a passenger on defendants' coach, on the thirtieth of June 1879, between the towns of Deer Lodge and Helena, and plaintiff recovered a judgment for the sum of $17,167, and costs of suit. From this judgment defendants appeal to the supreme court, and assign as error-- First, that the court erred in overruling their demurrer to plaintiff's amended complaint; second, that the panel for the trial jury was not drawn in accordance with the law third, exceptions to instructions; fourth excessive damages; fifth, that the evidence was insufficient to justify the verdict.

With regard to the fourth and fifth assignments of error, they were eliminated from the cause by the order of this court made at the August term, when the court struck out from the statement the evidence therein contained, and are not therefore considered in this opinion.

Referring to the assignments of error in their order, there is, first, the demurrer of defendants to plaintiff's amended complaint, which was general, that the complaint did not state facts sufficient to constitute a cause of action. The complaint sets out that the defendants were common carriers of passengers for hire, from Deer Lodge to Helena; that on the thirtieth day of June, 1879, plaintiff took passage on one of defendant's coaches, and prepaid his fare; that while he was in transit the said coach was, through and by reason of the negligence and carelessness and mismanagement of said defendants and their servants, and by reason of the failure of defendants to provide suitable, safe, and gentle horses, and a suitable and competent driver for the horses, that they became unmanageable, and one of them jumping, threw himself on the pole of the coach, and thereby broke the same, and threw and placed the coach in such a condition as to imperil the safety of the plaintiff. So far the complaint sets forth a state of facts upon which the plaintiff could have relied if the injury complained of had happened. But it will be observed this was not the case. The complaint continues: "and to render it apparently unsafe for plaintiff to longer remain on said coach; that he, being actuated by great fear of bodily injury by longer remaining thereon, jumped from said coach, and in so doing one of plaintiff's legs was fractured, bruised, broken," etc.

Thus far the plaintiff declares that the proximate cause of the injury he sustained was by his own action. In so far the complaint shows that the plaintiff contributed to the injury, and avers his reason for so doing, that it was apparently unsafe for him longer to remain on the coach; that he, being actuated by great fear of bodily injury by longer remaining thereon, jumped from said coach, etc. As plaintiff has heretofore averred that the proximate cause of the injury he sustained was the result of his voluntary act in jumping from the coach, placing it upon the ground of apparent danger, and actuated by his great fear of bodily injury, is he not required to first state, then prove, that in the doing of this he acted with a reasonable degree of care and prudence? Without entering into the question whether the plaintiff shall, in the first instance, be required to allege that he did not contribute by his own negligence to the injury complained of, we find, in this case, that the proximate cause of injury was the act of the complainant.

The question to be considered is, were the grounds of plaintiff's action, as set forth in the complaint sufficient to warrant the act, viz., "apparent danger, and great fear of bodily injury." These are the conditions that present themselves to plaintiff's mind, but is the condition of plaintiff's mind to be taken as the true rule of action? Is it not rather the mental condition of a reasonable and prudent man in similar circumstances? We think this the rule, and that plaintiff's having asserted that the proximate cause of his injury was from his own act, he should then be held to prove that in thus acting he did exercise that degree of care and prudence that a reasonable person could have done in like circumstances. This is nowhere stated in the complaint. We are left to conjecture as to that important factor in the cause. Generally the proof of the injury furnishes the proof or raises a strong...