McIntyre v. Northern P. Ry. Co.

• Citation: 191 P. 1065,58 Mont. 256
• Decision Date: 06 July 1920
• Docket Number: 4160.
• Parties: MCINTYRE v. NORTHERN PAC. RY. CO. ET AL.
• Court: Montana Supreme Court

191 P. 1065

58 Mont. 256

MCINTYRE v. NORTHERN PAC. RY. CO. ET AL.

No. 4160.

Supreme Court of Montana

July 6, 1920

Appeal from District Court, Silver Bow County; Theodore Lentz Judge.

Action by Muriel McIntyre against the Northern Pacific Railway Company, William T. Finnegan, and others. From a judgment in favor of the defendants named, and an order denying a new trial, plaintiff appeals. Affirmed.

Cooper J., dissenting.

N. A Rotering, of Butte, for appellant.

Walker & Walker, of Butte, and Gunn, Rasch & Hall, of Helena, for respondents.

BRANTLY C.J.

In this action the plaintiff seeks to recover damages for the loss she sustained by reason of the death of her son, Freddie Lautwe, which is alleged to have been caused by negligence in the operation of a switch engine of the railway company by its employés in its yard at Butte. Defendants Lawrence and Williams, respectively the engineer and fireman in charge of the engine, were not served with summons, and therefore were not parties to the trial. At the conclusion of the evidence the court, on motion of the railway company and defendant Finnegan, directed a verdict in their favor. Plaintiff has appealed from the judgment entered thereon, and from an order denying her a new trial. Counsel contend that the court erred in withdrawing the case from the jury.

McIntyre v. Northern Pacific Railway Co. et al., 56 Mont. 43, 180 P. 971, was an action by the plaintiff herein as administratrix of her son, to recover damages for the benefit of his estate. The complaint in that case was drawn, and the trial was had upon the theory that recovery could be had, if at all, under the rule of the last clear chance. The complaint in this case is identical with that in the other, and the trial was had upon the same theory. The plaintiff undertook to establish her right to recover in this case, by evidence which was the same in all substantial particulars as that introduced by her in the other case, with this exception: At the trial in the other case she testified that she was present in the yard at the time of the accident and witnessed it. She pointed out the place where she was standing. She also pointed out where her son was standing on the track when the engineer started to move the engine toward him, giving the distance before it reached him and ran him down. At the trial of this case she changed her testimony as given on the other trial, by putting herself at a point where she was much nearer the engine when it began to move, and fixing the point at which her son stood much farther from the engine, thus bringing herself relatively nearer to the engineer, in order to increase by her testimony the probability that the engineer saw her son in ample time to stop the engine before it reached him. She explained this change in her testimony by saying that at the other trial she had not measured these distances, but had only estimated them, whereas after the trial she had procured the services of a competent engineer and had them accurately measured. Reference to the epitome and analysis of the evidence made in the opinion in the other case will make it clear that the change in her testimony did not add materially to the evidentiary value of her narrative as then made. The discussion in that opinion fully covers and disposes of every phase of the evidence in this, under the rules of law applicable, and we are satisfied with the result reached. It is conclusive of this case.

It may be added that the defendants introduced several witnesses whose testimony was not introduced at the trial of the other case. Their testimony strongly impeached that of the plaintiff, in that it tended to show that she was not at the point where she said she was standing at the time of the accident, and that she was either mistaken in important particulars of her narrative, or that her statement that she was present in the yard and witnessed the accident was a fabrication. Conceding for the moment that her statement furnished the basis for an inference that the engineer actually saw the boy, in view of the change in her testimony, the positive statement of the engineer that he did not see the boy and the undisputed evidence, positive and circumstantial, of other witnesses introduced by the defendants, impeaching her testimony throughout, as pointed out in the opinion in the other case, the evidence as a whole was insufficient to justify a recovery.

If the pleadings had been formulated on the theory that because of the situation of the yard and customary use of it by those who lived in the vicinity and other members of the public by acquiescence of the railway company, its duty to take knowledge of their probable presence and to keep a lookout for them during the movement of its train would have been made apparent, and a different case would have been presented. The evidence might then have made a case calling for the judgment of the jury. The rules by which cases of that character are determined have no application here. In that class of cases it is the duty of the company to keep a lookout in order to avoid injury to persons who may be in the way of its trains. Dahmer v. Northern P. Ry. Co., 48 Mont. 152, 136 P. 1059, 142 P. 209; Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323. In cases of the class of the instant case, the company is under no duty other than to avoid injury to persons who may be in the way of its trains after their presence and peril have actually been discovered. Dahmer v. Northern P. Ry. Co., supra, and cases cited.

Construing the evidence from the aspect of it most favorable to the plaintiff, it presents nothing more than a scintilla tending to...