Leonidas v. Great N. Ry. Co.

Citation105 Mont. 302
Decision Date27 October 1937
Docket NumberNo. 7675.,7675.
PartiesLEONIDAS v. GREAT NORTHERN RY. CO. et al.
CourtUnited States State Supreme Court of Montana

105 Mont. 302

LEONIDAS
v.
GREAT NORTHERN RY. CO. et al.

No. 7675.

Supreme Court of Montana.

Oct. 27, 1937.


Appeal from District Court, Lewis and Clark County; George W. Padbury, Jr., Judge.

Action by George Leonidas against the Great Northern Railway Company and another. From a judgment on a verdict for plaintiff, defendants appeal.

Affirmed.


Weir, Clift & Bennett, of Helena, for appellants.

Loble & Adair, of Helena, for respondent.


ANGSTMAN, Justice.

This is an appeal from a judgment entered on a verdict in favor of plaintiff for damages for personal injuries alleged to have been sustained by him while in the employ of defendant railway company as a section laborer, and caused by defendants' alleged negligence.

The complaint consists of two causes of action, but at the conclusion of the evidence plaintiff elected to stand upon the second, and we shall therefore disregard the first.

The first contention of defendants is that the complaint does not allege sufficient facts to constitute a cause of action. The question was raised by demurrer and by objection to the introduction of evidence. The particular point relied upon is that the complaint does not show that the alleged negligence of defendants was the proximate cause of plaintiff's injuries.

The complaint alleges, in substance: That plaintiff was in the employ of defendant railway company on May 6, 1932, as a section laborer doing repair work on its railway track near the town of Windham; that defendant George Pappas was defendant company's foreman, with authority and control over plaintiff; that plaintiff and both defendants were at that time engaged in work constituting an essential and integral part of interstate commerce; that plaintiff was subject to and bound to obey the orders of Pappas; that it was the duty of defendants to use reasonable care to furnish a sufficient number of competent employees to safely perform the work in which they were engaged; that plaintiff was ordered by Pappas to lift and carry a heavy, water-sogged tie, weighing approximately 150 pounds; that to carry such a tie with reasonable safety required the services of at least two able-bodied and strong men to the knowledge of defendants; that plaintiff was inexperienced in the carrying of water-sogged ties, did not know its weight, or that one man was insufficient to carry it; that because of defendants' negligence in failing to furnish sufficient help to assist plaintiff, and while he was carrying the tie, he turned his ankle upon a rock, and, “by reason of the heavy tie which plaintiff was then and there carrying in obedience to the orders of defendants,” his muscles and ligaments were overtaxed, resulting in the injuries complained of. He further alleged that but for the negligent acts and omissions of defendants the injuries would not and could not have occurred. The conclusion is alleged that the negligent acts and omissions of defendants were the proximate cause of plaintiff's injuries.

Defendants contend that the proximate cause of plaintiff's injuries is shown to have been the turning of plaintiff's ankle upon a rock while he was carrying the tie, and not the negligence of the defendants.

In effect, plaintiff contends that the negligence of defendants in ordering plaintiff to carry the tie without assistance was the proximate cause of his injuries; that the turning of his ankle was caused by carrying the heavy tie; and that this would not have resulted had two men, instead of one, been carrying the tie. Here it is directlyaverred that but for the negligence of the defendants, the injuries to plaintiff would not have occurred. This is a sufficient allegation of the causal connection between the negligence complained of and the injury. Compare Flynn v. Poindexter & Orr Livestock Co., 63 Mont. 337, 207 P. 341. “No particular form is required in alleging the causal connection between the negligence charged and the injury. Where the acts of negligence are alleged, as a general rule it is sufficient to make a direct general allegation that plaintiff's injury resulted from such negligent acts or that such negligent acts caused the injury; or that it was wholly caused thereby; or that the injury was caused by reason of, by, through, or in consequence of, such negligence.” 45 C.J. 1095.

The general averment of the causal connection between defendants' negligence and the injury may, of course, be overcome by specific facts alleged, showing the intervention of an independent agency which produced the injury and which negatives the general averment; but “if from the character of the intervening agency and the circumstances under which the intervention occurred as disclosed by such specific averments reasonable minds might reach opposite conclusions in determining whether or not the intervention of an independent agency of the character described should have been reasonably expected to occur in such a way as to produce injury, then the court may not say as a matter of law that such specific averments overcome the general averment. In such a case, the demurrer must be overruled, and the complaint be held sufficient upon the strength of the general averment, regardless of the specific averments.” Cleveland, etc., Ry. Co. v. Clark, 51 Ind.App. 392, 97 N.E. 822, 828.

Here it cannot be said by all reasonable men that the turning of plaintiff's ankle could not have been reasonably expected to follow from the alleged negligence of defendants in requiring plaintiff to carry the heavy tie under the conditions then and there existing. Furthermore, the complaint is sufficient under the statute on which the action was based, if it shows that the injuries resulted in part from the negligence of the defendants.

Section 51 of title 45 U.S.C.A., on which the action is based, provides in part: “Every common carrier by railroad while engaging in commerce between any of the several States *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” That there is liability for injuries resulting in part from the negligence of defendants see Rocco v. Lehigh Valley R. R. Co., 288 U.S. 275, 53 S.Ct. 343, 77 L.Ed. 743.

The complaint is not defective for failure to show that the defendants' negligence was the proximate cause of plaintiff's injuries.

The next contention of defendants is that the court erred in not sustaining their motion for nonsuit and directed verdict upon the ground that...

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