Martin v. Northern P. Ry. Co.

• Decision Date: 25 May 1915
• Docket Number: 3512.
• Citation: 149 P. 89,51 Mont. 31
• Parties: MARTIN v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

149 P. 89

51 Mont. 31

MARTIN v. NORTHERN PAC. RY. CO.

No. 3512.

Supreme Court of Montana

May 25, 1915

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by Maggie Martin against the Northern Pacific Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Gunn Rasch & Hall, of Helena, for appellant.

Wellington D. Rankin, of Helena, for respondent.

HOLLOWAY J.

This action was brought to recover damages for the death of James T. Martin, a seven-year old boy who was found dead in a gondola car in the Northern Pacific yards at Helena on March 25, 1911. Anderson and Biggs, car inspectors, and McMasters a yard watchman, all in the employ of the railway company were joined as defendants. Throughout the pleadings, the court proceedings, and in the briefs presented upon this appeal, the complaint is treated as containing four causes of action. It is alleged that the car in question was out of repair, in that the appliances for keeping the door in place were broken or missing. In the first cause of action negligence is predicated upon the failure of McMasters to guard this car to prevent children getting upon it and in a place of danger; upon the failure of the inspectors to discover the defects in the car; upon the failure of the railway company to have the car repaired; and in permitting it, in its defective and dangerous condition, to be placed and to remain where it is alleged children of tender years were accustomed to play. In this connection it is alleged that the car had been in such defective condition for a long time prior to the date of the accident. In the second cause of action the allegations of the first are repeated, and in addition thereto it is alleged that the car in its defective condition was a dangerous instrumentality, and, because of its shape and of the fact that large holes had been burned in its sides, was peculiarly and unusually attractive to children of tender years and constituted an implied invitation to them to go on the railway company's property; that the Martin boy was attracted to the car, went upon it, and was killed by the car door falling upon him. In the third cause of action, in addition to the facts stated in the first, it is alleged that the railway company maintained in its yards, near where the car in question was placed, engines, trains and cars, a coal chute, and roundhouse, all of which were peculiarly attractive to children, and constituted an implied invitation to them to go upon the company's property, into its yards, and upon any cars standing there; that the Martin boy, being attracted by these various devices, went upon the car in question and was killed. In the fourth cause of action, the facts stated in the third are repeated, except that a turntable is substituted as the attractive nuisance, in place of the coal chute, roundhouse, engines, trains, and cars. A general demurrer to the complaint and to each so-called cause of action was overruled, and an answer filed which denied all allegations of negligence on the part of defendants. When plaintiff sought upon the trial of the cause to prove the attractive character of the coal chute and turntable, an objection was interposed and sustained, and in his brief counsel for respondent says: "The lower court excluded all evidence as to the third and fourth causes of action." Before trial the cause was dismissed as to McMasters. The jury returned a general verdict in favor of Anderson and Biggs and against the railway company. From the judgment entered thereon, this appeal is prosecuted.

The complaint states but a single cause of action set forth in four separate counts. Under section 6536, Revised Codes, a demurrer lies only to an entire complaint or to an entire cause of action. For this reason the trial court did not err in overruling the demurrer to each of the so-called causes of action. However, the same question is preserved in the record by an objection to the introduction of any evidence in support of the allegations of negligence contained in the first, third, and fourth counts.

The first count does not charge actionable negligence. The allegation that the car in question had been in its defective condition for a long time prior to the accident is too indefinite to impose upon the defendants any duty to make repairs. McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893; Phillips v. Butte Jockey Club, etc., 46 Mont. 338, 127 P. 1011. Neither is this count sufficient upon the theory that the railway company was negligent in failing to keep young children out of its Helena yards. In the absence of statute or ordinance requiring it, the company owed to deceased no duty to guard its yards against his encroachments, and any attempted assumption of the burden of guarding its yards did not create a legal duty upon its part to do so. In Barney v. Hannibal & St. Joe R. Co., 126 Mo. 372, 28 S.W. 1069, 26 L. R. A. 847, it is said:

"But plaintiff's counsel says that defendant assumed the duty of keeping its yards clear of boys, by giving instructions to its yard hands, etc.; but that this duty was neglected, and therefore a cause of action arises alone from this neglect. But if the prior duty did not exist to keep the boys out of the yards, then the mere assumption of a nonexistent duty would be but a gratuity with no precedent or concurrent consideration on which to base it, and therefore no liability would follow such assumed and pretermitted duty. Mere pretermission of a self-imposed precaution does not constitute actionable negligence."

It would not aid plaintiff if it be conceded that, from the custom of children in playing in the company's yards, a license to the deceased child was impliedly granted to go upon the car in question; for the car itself was not dangerous. It became dangerous only from being out of repair, and, in the absence of allegations sufficient to charge the company with the duty to repair, the count fails to disclose liability to a licensee upon that theory.

Neither the third nor fourth count states facts sufficient to warrant recovery. There is no causal connection disclosed between the alleged negligent acts and the injury. To make applicable the rule sought to...