Kern v. Payne, No. 4932.

Docket NºNo. 4932.
Citation65 Mont. 325
Case DateDecember 18, 1922
CourtUnited States State Supreme Court of Montana

65 Mont. 325

KERN
v.
PAYNE, DIRECTOR GENERAL OF RAILROADS.

No. 4932.

Supreme Court of Montana.

Dec. 18, 1922.


Commissioners' Opinion.

Appeal from District Court, Custer County; S. D. McKinnon, Judge.

Action by Lottie I. Kern, as administratrix of the estate of Henry L. Kern, deceased, against John B. Payne, Director General of Railroads, as agent under the Transportation Act of February 28, 1920 (41 Stat. 456). From judgment for plaintiff and from an order denying a new trial, the defendant appeals. Reversed and remanded, with directions to dismiss complaint.


Murphy & Whitlock, of Missoula, for appellant.

Sharpless Walker, of Miles City (F. M. Miner and George C. Stiles, both of Minneapolis, Minn., of counsel), for respondent.


FORD, C.

This action is brought by the administratrix of the estate of Henry L. Kern, deceased, to recover for his death, which occurred at Roundup, Mont., in January, 1920, basing her action upon the federal Employers' Liability Act of April 22, 1908, 36 Stat. at Large, 65, c. 149 (U. S. Comp. St. §§ 8657-8665), and the Safety Appliance Acts of March 2, 1893, 27 Stat. at Large, 531, c. 196, March 2, 1903, 32 Stat. at Large, 943, c. 976, and April 14, 1910, 36 Stat. at Large, 298, c. 160 (U. S. Comp. St. §§ 8605-8623).

The complaint alleges that at said time the Chicago, Milwaukee & St. Paul Railway Company was under federal control, and that the defendant, Payne, was at the time of bringing the action Director General of Railroads and the designated agent against whom actions should be brought to enforce liability arising out of and occurring during federal control; that it was the duty of the defendant under what is commonly known as the Safety Appliance Act to refrain from using or moving over the line of railroad in question any car not properly equipped with a coupler which would couple automatically by impact and uncouple without the necessity of men going between ends of the cars; that the deceased was at the time employed by the defendant upon the system known as the Chicago, Milwaukee & St. Paul Railway, and was a member of a train crew engaged in operating a freight train from Melstone, Mont., to Harlowton, Mont., and that said train was carrying goods moving in interstate commerce; that in violation of the Safety Appliance Act there was one car in said train, the coupler of which was defective and was in such condition that it was impossible, by the use of the lever thereon, to open the knuckle thereof; that while the said Kern and other members of the crew were engaged in switching operations at Roundup, it became necessary to couple another car onto the end of said car, at which the defective coupler was located, and that the said Kern was engaged about the work of making the coupling, and that, because of the fact that the coupler on said car was defective, he stepped in front of the car, which was approaching said car, and which was to be coupled onto it, for the purpose of opening the knuckle on the moving car, so that the same would properly couple; that at said time the said Kern was on the opposite side of the car from that upon which the lever from which the coupler could be operated was located, and that he went in front of the moving car and opened the knuckle, and in attempting to get out in some manner came in contact with a switch frog, and was thrown upon the track in such a way that the moving car ran over and crushed his foot; that infection developed in the injured limb, and so progressed that the decedent died on the 25th day of January, 1920.

The defendant in his answer admits the operation of the railroad in question by the defendant, and admits the duty of the defendant, as prescribed by the Safety Appliance Act, but denies that there was any violation of the act, or that any car with a defective coupler was moved by the defendant; admits the employment of Henry L. Kern as a brakeman, and admits also that the train upon which he was working contained cars of merchandise moving between states, and admits that the said Kern was engaged in switching operations, and that it was his duty, among others, to assist in coupling certain cars; admits that he sustained the injury to his foot in which an infection developed, and that he thereafter died, but denies that there was any necessity for his going between the cars; and denies all of the allegations of negligence contained in the complaint. The defendant also alleges affirmatively that the injury relied upon occurred in consequence of the ordinary risk of the work in which he was engaged, and that such risk was assumed by him. The defendant also pleads affirmatively contributory negligence on the part of the deceased, and also that the injury arose solely from the carelessness and negligence of the deceased.

The reply denies the affirmative allegations in the answer.

At the close of all the testimony a motion was made by the defendant for a directed verdict, which was denied. The plaintiff had judgment and verdict for $18,000. The defendant has appealed from the judgment and from an order denying a new trial.

The defendant assigns 11 errors, but in argument groups them under four specific heads, one only of which we deem it necessary to consider as decisive of this case, viz.: Is the evidence sufficient to support the verdict?In that respect the defendant contends that the particular in which the evidence is insufficient is that it does not show that the defective condition of the coupler was the proximate cause of plaintiff's injury.

In this state, as well as in every state of the Union, and in all the United States courts, the plaintiff, in a personal injury case, must prove by competent evidence, not only that the defendant was guilty of negligence, but that such negligence was the proximate cause of his injury. This doctrine is very clearly announced in the case of Stones v. Chicago, Milwaukee & St. Paul Railway Co., 59 Mont. 342, 197 Pac. 252, where the rule is stated as follows:

“It is elementary that in order to make out a case of this character it must be made to appear from the complaint and the evidence (1) that the defendant was negligent; (2) that plaintiff was injured; and (3) that the negligence charged was the proximate cause of the injury. In other words, the causal connection between the negligence alleged and the injury suffered must appear affirmatively. Glover v. Chicago, M. & St. P. Ry. Co., 54 Mont. 446, 171 Pac. 278;Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673. The question always is: Was the negligence causa sine que non--a cause which had it not existed, the injury would not have occurred (Hayes v. Michigan C. R. Co., 111 U. S. 228, 28 L. Ed. 410, 4 Sup. Ct. Rep. 369. See, also, Rose's U. S. Notes), for the master may be held liable only when to his lapse of duty is directly attributable the injury to the servant, as any given effect is to be assigned to its efficient cause (Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243).”

In the earlier case of Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515, the doctrine was also announced in the following language:

“Thus, in an ordinary case of negligence, like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff's injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to establish plaintiff's case, if the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the word ‘tend’ does not contemplate conjecture.”

Negligence in certain cases may be presumed, and in the case of statutory negligence the violation of the statute is a sufficient showing of negligence, but in those cases the negligence must be shown to be the proximate cause of the injury. This court has decided that question in the case of Monson v. LaFrance Copper Co., 39 Mont. 50, 101 Pac. 243, 133 Am. St. Rep. 549, supra, which was a case in which the...

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13 practice notes
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...564; Hadgert v. Railroad Co., 202 N.Y. Supp. 793, 207 N.Y. App. Div. 764; Schendel v. Ry. Co., 165 Minn. 223, 206 N.W. 436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767, certiorari denied, 261 U.S. 617; Johnson v. Terminal Railroad Assn., 8 S.W. (2d) 891; Ill. State Trust Co. v. Railroad Co., ......
  • Peters v. Wabash Ry. Co., No. 28861.
    • United States
    • United States State Supreme Court of Missouri
    • October 1, 1931
    ...v. Railroad Co., 202 N.Y. Supp. 793, 207 N.Y. App. Div. 756, 764; Schendel v. Railway Co., 165 Minn. 223, 206 N.W. 436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767 (certiorari denied, 261 U.S. 617); Johnson v. Terminal Railroad Assn. (Mo.), 8 S.W. (2d) 891; Illinois State Trust Co. v. Railroa......
  • State v. Espelin, No. 7749.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 16, 1938
    ...of presumptions into the barest region of conjecture. First National Bank of Glendive v. Sorenson, 65 Mont. 1, 210 P. 900;Kern v. Payne, 65 Mont. 325, 211 P. 767.” We approved this rule in Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53. The rule is everywhere recognized, as evide......
  • Staff v. Mont. Petroleum Co., No. 6645.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 29, 1930
    ...Copper Min. Co., 47 Mont. 554, 133 P. 1090;Monson v. La France Copper Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549;Kern v. Payne, 65 Mont. 325, 211 P. 767. A similar case was before the Court of Appeals of New York, where the same contention was made as in the case before us. In discu......
  • Request a trial to view additional results
13 cases
  • Kimberling v. Wabash Ry. Co., No. 32531.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...564; Hadgert v. Railroad Co., 202 N.Y. Supp. 793, 207 N.Y. App. Div. 764; Schendel v. Ry. Co., 165 Minn. 223, 206 N.W. 436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767, certiorari denied, 261 U.S. 617; Johnson v. Terminal Railroad Assn., 8 S.W. (2d) 891; Ill. State Trust Co. v. Railroad Co., ......
  • Peters v. Wabash Ry. Co., No. 28861.
    • United States
    • United States State Supreme Court of Missouri
    • October 1, 1931
    ...v. Railroad Co., 202 N.Y. Supp. 793, 207 N.Y. App. Div. 756, 764; Schendel v. Railway Co., 165 Minn. 223, 206 N.W. 436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767 (certiorari denied, 261 U.S. 617); Johnson v. Terminal Railroad Assn. (Mo.), 8 S.W. (2d) 891; Illinois State Trust Co. v. Railroa......
  • State v. Espelin, No. 7749.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 16, 1938
    ...of presumptions into the barest region of conjecture. First National Bank of Glendive v. Sorenson, 65 Mont. 1, 210 P. 900;Kern v. Payne, 65 Mont. 325, 211 P. 767.” We approved this rule in Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53. The rule is everywhere recognized, as evide......
  • Staff v. Mont. Petroleum Co., No. 6645.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 29, 1930
    ...Copper Min. Co., 47 Mont. 554, 133 P. 1090;Monson v. La France Copper Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549;Kern v. Payne, 65 Mont. 325, 211 P. 767. A similar case was before the Court of Appeals of New York, where the same contention was made as in the case before us. In discu......
  • Request a trial to view additional results

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