Linney v. Chicago, M., St. P. & P.R. Co.

• Decision Date: 02 May 1933
• Docket Number: 7033.
• Citation: 21 P.2d 1101,94 Mont. 229
• Parties: LINNEY v. CHICAGO, M., ST. P. & P. R. CO.
• Court: Montana Supreme Court

21 P.2d 1101

94 Mont. 229

LINNEY v. CHICAGO, M., ST. P. & P. R. CO.

No. 7033.

Supreme Court of Montana

May 2, 1933

Rehearing Denied May 22, 1933.

Appeal from District Court, Gallatin County; B. B. Law, Judge.

Action by Carrie May Linney against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. From a judgment for plaintiff defendant appeals, and plaintiff makes cross-assignment of error.

Reversed and remanded for a new trial, with direction.

Roy M Keister, of Bozeman, and Murphy & Whitlock, of Missoula, for appellant.

Walter Aitken, of Bozeman, for respondent.

ANDERSON Justice.

This action was brought to recover damages to an automobile, the property of plaintiff, resulting from a collision on a highway crossing at Three Forks, Montana, between the automobile and a string of railroad cars which was being moved in a westerly direction over the crossing.

The complaint was in two counts. In the first count of her complaint plaintiff alleged the corporate existence of, and ownership of the railroad tracks and yards by, the defendant through the corporate limits of the town of Three Forks; the existence of a public highway or street crossing the tracks of the defendant; and the use of the tracks by the defendant for the movement of trains and locomotives over the grade crossing. After alleging these facts, plaintiff alleged "that as plaintiff *** while *** using and driving said automobile on said highway with due care and caution over and across the tracks of the defendant at the point aforesaid, on the 13th day of November, 1931, the defendant so carelessly and negligently then and there operated and propelled one or more of its railroad cars upon and across said street and/or highway crossing that said railroad car and/or cars collided with said automobile and so damaged said automobile as to render it useless." Plaintiff further alleged damages in the sum of $700.

The second count of the complaint is identical with the first with the exception that, after alleging the same facts with reference to the ownership and location of the railway and of the highway, it alleged that when the driver of the car approached the crossing he stopped, looked, and listened, and used every ordinary care and precaution for his own safety and of the automobile, and in the exercise of such care proceeded over the crossing, and that defendant, through its servants and employees, carelessly, negligently, and recklessly drove and propelled one or more of its railway cars into and upon the automobile on the crossing, and damaged the same. A further paragraph appears in the second count of the complaint, alleging that the employees saw, or in the exercise of ordinary care and caution could have seen, the automobile when it started over the crossing, and could have stopped the train in time to have prevented the collision, but which they did not do.

To this complaint the defendant demurred generally, and specially upon the ground of uncertainty. The demurrers were overruled, and the defendant answered.

The car was being driven by the husband of the plaintiff with her consent. At the time of the accident the driver of the car, together with a companion, were returning from Townsend to their homes at Belgrade. They proceeded along the highway until they approached the crossing of the highway over the tracks of the defendant at Three Forks. The defendant company had four parallel tracks at the point of crossing. The driver and his companion both testified that on the evening of November 13, 1931, they arrived at the crossing between 6:30 and 7 o'clock, stopped the car, lowered the window on the left-hand side, looked down the track, and observed on the fourth track a string of cars which was not then in motion. They also saw a locomotive or electric motor in the vicinity of the depot, some 300 yards distant, with a headlight burning; but they were unable to testify as to whether or not this engine or motor was attached to the string of cars. After making these observations and hearing no whistle or bell or other noise indicative of an approaching or moving train or string of cars, they proceeded over the crossing. As they proceeded over it, the string of cars on the last track collided with the rear end of the automobile and carried it along the track until it came in contact with a power-line pole, and the moving string of cars crushed the automobile against the pole. They further testified that immediately preceding the impact of the train they heard a shout, "Look out," and the collision was almost simultaneous with the outcry. These witnesses testified that they did not see or hear any train or moving cars prior to the outcry; that they were moving over the crossing at a slow rate of speed, from ten to fifteen miles an hour; and that the string of cars was moving about as rapidly as a man would walk.

The cause was tried by the court sitting with a jury. Defendant moved for a nonsuit, which was granted as to the second cause of action, and denied as to the first cause of action. Defendant offered no evidence and moved for a directed verdict, which motion was denied. The trial resulted in a verdict in the sum of $400, and from the judgment entered thereon this appeal was perfected.

The defendant, by answering after the court's ruling on the special demurrer raising the question of uncertainty of the complaint, waived such objection, and the question thus raised may not be considered on appeal. Pue v. Wheeler, 78 Mont. 516, 255 P. 1043; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253, 256; McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Holt v. Sather, 81 Mont. 442, 264 P. 108; Daly v. Swift & Co., 90 Mont. 52, 300 P. 265.

The defendant insists that the complaint is insufficient to charge the defendant with negligence, in that "no acts of negligence are alleged." The complaint must be liberally construed with a view to substantial justice between the parties. Johnson v. Herring, 89 Mont. 156, 295 P. 1100; Boyd v. Great Northern R. Co., 84 Mont. 84, 274 P. 293. Whatever is necessarily implied in or is reasonably to be inferred from an allegation is to be taken as directly averred. Robinson v. F. W. Woolworth Co., supra; Marcellus v. Wright, 51 Mont. 559, 154 P. 714.

A plaintiff seeking recovery for actionable negligence must allege in his complaint facts showing these three elements: (1) That defendant was under a legal duty to protect him from injury of which he complains; (2) that the defendant failed to perform this duty; and (3) that the injury was proximately caused by defendant's delinquency. Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 152 P. 481, L. R. A. 1916D, 836.

In pleading a cause of action founded in negligence within the foregoing rules, the facts and not legal conclusions must be stated; and it is therefore necessary to set forth sufficient facts from which it can be said, as a matter of law, that the defendant owed to the injured party a duty arising from some legal relation existing at the time of the injury. Kakos v. Byram, 88 Mont. 309, 292 P. 909. However, it is unnecessary to allege the particular omission which renders the act negligent, provided negligence may reasonably be implied from the facts alleged. Johnson v. Herring, supra; Forquer v. North, 42 Mont. 272, 112 P. 439; Robinson v. F. W. Woolworth Co., supra. Nevertheless the facts must be stated by direct averment, so that the party who is to answer may understand the specific acts of remissness with which he is charged and that material issues may be framed for trial. Kakos v. Byram, supra; Stricklin v. Chicago, etc., R. Co., 59 Mont. 367, 197 P. 839. If a legal duty arises or may be readily inferred from the facts alleged, the plaintiff is not required to plead such declarations of law. Robinson v. F. W. Woolworth Co., supra.

The plaintiff urges that the complaint is sufficient under certain decisions of this court, which we will now consider. In the case of Thompson v. Shanley, 93 Mont. 235, 17 P.2d 1085, 1087, it was said: "The sufficiency of a complaint must be determined from the facts alleged and not from the use of such terms as 'negligently, recklessly,...