McAndrews v. Montana Union Ry. Co.

• Decision Date: 11 February 1895
• Citation: 39 P. 85,15 Mont. 290
• Parties: McANDREWS v. MONTANA UNION RY. CO.
• Court: Montana Supreme Court

39 P. 85

15 Mont. 290

McANDREWS v. MONTANA UNION RY. CO.

Supreme Court of Montana

February 11, 1895

Appeal from district court, Silver Bow county; J. J. McHallon Judge.

Action by Michael McAndrews against the Montana Union Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Geo Haldorn and J. S. Shropshire, for appellant.

J. W Cotter, for respondent.

PEMBERTON C.J. (after stating the facts).

The appellant contends that the verdict is not supported by the evidence, in that it appears from the evidence of the plaintiff, clearly, that, if the hand car was defective and dangerous, the plaintiff had full knowledge thereof; that he used it voluntarily; that he did not use it with proper care; that he never refused to use the car, and that no threats or inducements were used by the defendant or the foreman to induce him to use it. This contention requires an examination of the testimony offered by the plaintiff.

It appears from the plaintiff's own testimony that he was a man of considerable experience in the kind of work he was employed in doing at the time he was injured, he having been engaged in this character of work for about three years before this. He states in his complaint that the car was defective and dangerous, and that about 15 days before the accident he so informed the foreman. He swears that on the day of the accident, and just before it occurred, he told the foreman "that the car was unsafe, and that he was afraid it would kill somebody," and that the foreman replied: "Get on that car. It is all right. We will soon get a new one." In another place he says: "The foreman said he was going to get a new car in a few days. He told me to get on the car, and use it as carefully as we could, and get along the best we could." In describing the condition of the car at the time he was using it, the plaintiff says: "As to what was the trouble with the car, as near as I can judge, she used to wabble. Her boxes were too loose, and she would wabble from one side to the other, and she was too loose, and out of running order. Furthermore, there was no brake on the car; that is, that could be used. It was an old car, and, in fact, I couldn't even find the date on it, or the number of it. It was an old car, being, I guess, used for many years. I couldn't say how many. Her wheels were what I would call 'wood and iron,' and here, where the iron runs out from where it is on the axle, the wood was loose; the wheels were wood, along with the iron inside the iron, and where the wood fastened into the boxing around the axle some of the wood was loose, and would work in and out. That was the car that I was on the morning that I was injured." The plaintiff also swears that he had heard of this car jumping the track before this, and on one occasion it jumped the track when he was present, when the evidence shows it was being run at about four miles an hour. At the time of the accident, plaintiff says, they were not going any "faster than between five and seven miles an hour, as far as he could judge." The plaintiff says that when he was told to get on the car by the foreman he could not say whether the car was all right or not, but supposed the foreman knew more about it than he himself did, because he was foreman, and was supposed to know more about it than he did. This is substantially all that plaintiff's testimony shows that the foreman did or said to induce him to use the car.

Martin McManimee, the section foreman, was introduced as a witness on the part of the plaintiff. He and plaintiff are cousins. His testimony corroborates that of plaintiff, in the main, as to the condition of the car. He says plaintiff, just before the accident, spoke to him about the car, saying it was not safe. He says: "I told him we had to do the best we could. I told him to get on the car, and go to Garrison. I expected that any time." In another place he says: "The condition of the car on which McAndrews was riding that morning was that for months before it was not fit for any white man to put it on a track." In another place this witness says: "McAndrews had complained about this car, and all the men on that section had made the same complaint. It had frequently left the track with me before this accident. It is easy for any man to know how she would leave the track." He says the axle was bent. He says, at the time of the accident, "she was running, perhaps, between six and seven and eight miles an hour; not faster." It appears that there were two cars on the track going to Garrison at the time of the accident; that plaintiff was on and in charge of the front car, and the foreman in charge of the other; that the cars were running very closely together--so closely that they frequently struck each other--before the accident. He says that this car left the track with him once, about two weeks before the accident, going at the rate of not more than four miles an hour, and that plaintiff was present. He says the car had a "bent axle," and "was out of repair in every shape from the first day she came to Garrison." McManimee further testifies: "When McAndrews complained, I told him that Sawyer always told me that he would send a new car as soon as he could get one, and to get along the best he could until such time. Sawyer told me he would send a new car as soon as he could. I did not know when he would send it. I ordered McAndrews to go ahead anyhow, and use the car. I did not threaten to discharge him if he did not use the car." He further swears that he never in his life "told a man that he would have to take his time if he did not use a car." Again, this witness says: "Several times before this, McAndrews had said that the car was unsafe, which I knew, but he never refused to use it; that is, straight out refused; he always grumbled a little." In answer to a question, this witness says he did not order plaintiff to take this car against his will, for he says: "I couldn't order any man against his will."

From the foregoing statement of the evidence...