Lynes v. Northern P. Ry. Co.
| Citation | 117 P. 81,43 Mont. 317 |
| Parties | LYNES v. NORTHERN PAC. RY. CO. et al. |
| Decision Date | 20 May 1911 |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Action by Albert Lynes against the Northern Pacific Railway Company and William Bell. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Wm Wallace, Jr., John G. Brown, and R. F. Galnes, for appellants.
Purcell & Horsky, Walsh & Nolan, and T. J. Walsh, for respondent.
On June 1, 1906, Albert Lynes was employed by the Northern Pacific Railway Company as a locomotive engineer, operating from Missoula west and particularly between the stations of De Smet and Reid. His duty was to assist with his locomotive in drawing west-bound trains over the mountain. On the morning of June 1st Lynes was ordered to attach his locomotive to the front of west-bound extra train No. 1300 and proceed westward. He was notified before leaving De Smet to meet east-bound extra train No. 1308, of which the defendant Bell was the engineer in charge, at Reid, and, to effect the passage of the two trains, it was the duty of Lynes to take his train upon the siding at Reid, and he so understood the order. Immediately after Lynes' train left De Smet Bell's train reached Reid, pulled past the station on the main line and stopped. The switch, by means of which Lynes' train would be placed on the siding at Reid, was some 3,500 feet east of the station. From a point a considerable distance east of the switch to a point 200 feet east thereof the track proceeds on a downgrade of about .78 per cent., and near the switch assumes an ascending grade of about 2.2 per cent. compensated. Near the switch there is a curve. Lynes proceeded to take his train westward from De Smet, but passed the east switch at Reid and ran up the main line track until his locomotive collided with Bell's. Immediately before the two trains came together, Lynes jumped from his locomotive and sustained injuries. He brought this action to recover damages against the railway company and Bell, and alleges negligence in the following particulars: (a) Negligence on the part of Bell in running his train past the station at Reid; (b) negligence on the part of the railway company in permitting Bell's train to occupy a position on the main track east of the station; (c) negligence on the part of Bell and the crew of his train in failing to throw the east switch at Reid so that plaintiff's train would go upon the side track; and (d) negligence on the part of the company in failing to give the plaintiff a caution card before he left De Smet. The defendants answered jointly, denying all the allegations of negligence charged, and pleading contributory negligence and assumption of risk. The trial of the cause resulted in a judgment in favor of plaintiff, and from that judgment and an order denying them a new trial the defendants have appealed.
1. It is insisted that the complaint does not state a cause of action. It is alleged that Lynes was injured as the result of his own act in jumping from the moving train, and it is urged that the complaint does not disclose that in jumping from his locomotive the plaintiff was free from contributory negligence. The former decisions of this court, beginning with Kennon v. Gilmer, 4 Mont. 433, 2 P. 21, and concluding with Badovinac v. Northern Pacific Railway Co., 39 Mont. 454, 104 P. 543, have established in this jurisdiction the exception to the general rule of pleading in negligence cases, viz., that, where plaintiff's own act is a proximate cause of his injury, he must allege and prove that in doing the particular act he was moved by those considerations for his own safety which would actuate a reasonably prudent person, similarly situated, to do as he did. In Kennon v. Gilmer, the excuse offered by the plaintiff for jumping from a rapidly moving coach, was "apparent danger and fear of bodily injury." This court held that the allegation was insufficient to relieve the plaintiff from the imputation of negligence on his part, and the reasons given are there set forth. In the Badovinac Case the plaintiff alleged that he jumped from a moving train "because (1) it was dark and he could not determine that the train was moving at a great rate of speed; and (2) the brakeman directed him to jump," and this pleading was likewise held insufficient, and the subject received consideration at great length. In the present instance the plaintiff, after alleging that he was deceived by the legend on the milepost east of the switch and because of the character of his train and the track he ran past the switch and into Bell's train, then continues: "That immediately before such collision, plaintiff, recognizing that it was inevitable, jumped from his engine while so running, as aforesaid, to avoid being killed, and in so doing received grievous bodily injuries," etc. In the Badovinac Case above, this court said:
In order, then, to determine whether the plaintiff has stated facts sufficient, it is only necessary to ask whether the jury could say from the facts pleaded, if supported by the evidence, he did act as a reasonably prudent person under like circumstances would have acted. Assume that plaintiff went upon the stand and testified, "I realized that a collision between Bell's train and mine was inevitable, and I jumped from my locomotive to save my life," and that this was all the evidence upon the subject. Did he act as a reasonably prudent person would have acted under the circumstances? We undertake to say that no man or body of men could answer the question one way or another, because there are not sufficient facts upon which to base an answer or to form an opinion. If Lynes' train was running 50 miles per hour, the question would doubtless be answered in the affirmative by every one. If, on the other hand, his train was running at 2 miles per hour, a negative answer might be fully justified; while if it was running 4 miles per hour, different persons might disagree as to the proper answer to be made. It will be observed that the complaint does not state the rate of speed at which plaintiff's train was moving when he discovered Bell's train, or how far away Bell's train was when the discovery was made.
Nearly 30 years have elapsed since this court, in Kennon v. Gilmer, announced the rule applicable here, and there can scarcely be any excuse offered at this late day for disregarding the law as there laid down. The complaint fails to state facts sufficient to negative the presumption of negligence, and in that it fails to state a cause of action under the circumstances disclosed by the pleading itself.
2. The trial court undertook to state in instruction No. 1 the material allegations of the pleadings and the general issues for trial. Objection was made by defendants that the statement was not complete and did not fairly present the matters in issue. The objection was overruled, and error is predicated upon the ruling. In the complaint plaintiff pleads that it was his duty to place his train on the siding at Reid; but the court in its general instruction omits any reference to this admission, and when its attention was called to the omission there was a refusal to correct the instruction so as to present the admitted fact to the jury. The admission was material, since it showed knowledge on the part of plaintiff of the duty imposed upon him and a full appreciation of the duty. The practice of giving a general charge analyzing the pleadings and defining the issues is to be commended, but such charge should present the matters fully and fairly, that the jury may be enlightened and not misled. Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 P. 87. The trial court should have corrected the instruction so as to include the admission in the complaint mentioned above.
3. That portion of defendant's line of road between De Smet and Reid constituted a block, and the movements of trains over this track were governed by the block signal system. The semaphore at Reid was directly in front of the station and marked the beginning of the block. Under what is known as a positive block, a collision is practically impossible, for only one train can be on a block at any given time. There is, however, a permissive block upon which two or more trains may be at one time, under cautionary instructions. The siding at Reid which is altogether east of the station is not a part of the block system. This record contains more than 1,400 pages. Much of it is given to explanations of the block signal rules. Without attempting a summary, we must content ourselves with the mere statement of our conclusions from the record, since it is impossible to state even the substance of the evidence within any reasonable limit.
In running his train from the west past the semaphore at Reid and entering upon the block between Reid and De Smet without orders and despite the fact the signal at Reid was displayed against his train, Bell was guilty of negligence. The rules under which he operated are written in plain, terse English. It was his duty to keep his train west of the semaphore at Reid, until Lynes' train had cleared the east switch and was upon the siding, for cautionary instructions were not given, such as the rules contemplate for a permissive block.
In running past the east switch at Reid and up the main line instead of taking the...
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