Lynch v. Great Northern Ry. Co.

• Decision Date: 27 March 1909
• Citation: 100 P. 616,38 Mont. 511
• Parties: LYNCH v. GREAT NORTHERN RY. CO. et al.
• Court: Montana Supreme Court

100 P. 616

38 Mont. 511

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

Supreme Court of Montana

March 27, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by Matilda Mary Lynch, administratrix of the estate of Timothy P. Lynch, deceased, against the Great Northern Railway Company and others. From a judgment for defendants on demurrer to the complaint, plaintiff appeals. Affirmed.

Breen & Hogevoll, for appellant.

Forbis & Evans, Kremer, Sanders & Kremer, and I. Parker Veazey, for respondents.

SMITH J.

The complaint in this action, after alleging the corporate character of the Great Northern Railway Company and the Boston & Montana Company, and the representative capacity of the plaintiff, reads as follows:

"(4) That the said defendants William Borden, Daniel Eaton, J H. Kane, and Charles B. Foster now are, and have at all the times hereinafter set out been, citizens of the state of Montana, and have resided in the city of Butte in said state, and at the time of the injury hereinafter described were servants of the said railway company, and had charge of the engine and caboose that ran over the deceased as hereinafter set out.

"(5) That on or about the 5th day of February, A. D. 1908, the said defendants, acting jointly, and by their joint act of wanton and willful negligence, did strike, maim, and kill Timothy P. Lynch, the husband of this plaintiff, as follows, to wit: The said defendant Boston & Montana Consolidated Copper & Silver Mining Company has for a long time prior to the said date, and did on the said date operate a mine known as the 'Gambetta Mine,' and from the said mine the said corporation willfully, wrongfully, and negligently exhausted steam on the track of the said railway corporation, through a certain pipe laid at said place by the said Boston & Montana Consolidated Copper & Silver Mining Company, and thereby did obscure the said track, and made it impossible for the other said defendants to see through the said steam, and thereby did cause the injury hereinabove set out, by making it impossible for any person walking on the said track to see through the said steam, and no person could tell if a locomotive or cars came along while the said steam was obstructing the view of said track, and the said track was thereby made extremely and extraordinarily dangerous for pedestrians on the said track, and extremely dangerous for all persons that used said track who were by virtue of necessity, and as licensees, using said track. That the said exhaustion of steam had continued for at least a year before the 5th day of February, 1908.

"(6) That at the said place, near the said Gambetta mine, a great many mines are operated, and approximately 500 men, as a general rule, would, between the hours of 5 and 6 in the afternoon, at which time of the day the injury hereinafter described took place, use the said track as pedestrians for a distance of from 200 to 500 feet, or cross at a certain crossing about 200 feet north of the point where the injury hereinafter described took place. That approximately for 10 years previous to the said date the said number of men had, without objections from the said railway company, and by the said railway company's license, and as a matter of necessity in going and coming to and from their work to mines surrounding the said track, used the said track as a footpath, and had been in the habit of crossing the said track at the said place, and at different places, where the said injury took place. That by virtue thereof the deceased, Timothy Lynch, was a licensee, and was rightfully on the track.

"(7) That the said railway company knew that their track was used in the manner as aforesaid, or by the exercise of ordinary care would have known that it was so used, and the said mining company well knew, or by the exercise of ordinary care ought to have known, that the said exhaustion of steam made the said track dangerous as aforesaid, under the condition as hereinabove set out, and the defendants William Borden, Daniel Eaton, H. J. Kane, and Charles B. Foster also well knowing the premises; but nevertheless the said defendant railway company, by its said servants, at some time between the hours of 5 and 6 in the afternoon on the 5th day of February, or thereabouts, in the year 1908, without blowing the whistle at the said crossing, and without looking ahead of the engine or caboose, and in great disregard of human life, attached a certain caboose in front of an engine, and ran from the north over the said crossing of a certain public highway, at the rate of 20 miles an hour, and by their gross negligence and wanton disregard of human life did kill Timothy P. Lynch, the husband of this plaintiff, while the said Timothy P. Lynch was acting with due care on his part, by running over the said Timothy P. Lynch by having their said caboose attached in front of the said engine, while the said engine was running at the rate of 20 miles an hour.

"(8) That the said railway company and its servants, well knowing the negligence of the said mining company by exhausting its steam, and well knowing it would be impossible for a person to get off of its track while in the said steam, did not ring the bell and did not blow the whistle a distance of from 50 to 80 rods from the said crossing.

"(9) That the said railway company and its servants, as it came to the said place where the said view was obstructed, expected that some human being would be run over by the said defendant railway company; and its servants, by reason of the fact as aforesaid, to wit, that miners were always on the track at said time and at said place, in utter disregard of human life, going at a dangerous rate of speed, then and there did run over the said deceased Timothy Lynch, and maimed and killed him as aforesaid.

"(10) That it was the duty of the said defendant railway company, and the duty of its said servants, to refrain from wantonly killing any human being on its track; and, in order to observe said duty, it would be necessary to ring the bell or blow the whistle, as hereinbefore set out, and also to blow its whistle or ring its bell in approaching said steam, and not to put a caboose in front of its engine, and thereby obstruct its own view, and not to go at an excessive rate of speed at a place where human beings were constantly known to be crossing or walking on the said track, and where human beings were expected to be. That it was the duty of the said mining company not to so construct and maintain its plant that dense volumes of steam would

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