McIntyre v. Northern P. Ry. Co.

• Decision Date: 02 May 1919
• Docket Number: 3984.
• Citation: 180 P. 971,56 Mont. 43
• Parties: McINTYRE v. NORTHERN PAC. RY. CO. et al.
• Court: Montana Supreme Court

180 P. 971

56 Mont. 43

McINTYRE v. NORTHERN PAC. RY. CO. et al.

No. 3984.

Supreme Court of Montana

May 2, 1919

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Muriel McIntyre, as administratrix of the estate of Fred Lautwe, deceased, against the Northern Pacific Railway Company, and others. From judgment for defendants, and from order denying new trial, plaintiff appeals. Modified and affirmed.

Cooper J., dissenting.

N. A Rotering, of Butte, for appellant.

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

HOLLOWAY J.

This action was brought to recover damages for the alleged wrongful death of Fred Lautwe, who was killed in the railroad yards at Butte in December, 1915, by being run over by a Northern Pacific locomotive in charge of Engineer C. A Lawrence. The fireman, Williams, and brakeman, Finnegan, were joined as defendants. It is alleged in the complaint that at the time of the accident the deceased was carelessly and negligently upon the railway right of way in a place of danger, but unobservant of the approach of the locomotive; that the individual defendants saw the deceased, saw that he was in imminent peril, and that he was apparently unconscious of danger; that by the exercise of ordinary care they could have avoided injuring him, but, notwithstanding these facts, they negligently, carelessly, wantonly, and willfully drove the locomotive over him, inflicting injuries which caused his death. The answering defendants admitted that the boy was killed, that he was negligently upon the railway track, and denied all the other material allegations of the complaint. Upon the trial of the cause, and at the conclusion of the evidence the court directed a verdict for defendants, and judgment was entered accordingly. Plaintiff appealed from the judgment and from an order denying a new trial.

The complaint was drawn and the cause tried upon the theory that recovery could be had only under the last clear chance doctrine. The principal contention made by appellant is that sufficient evidence was introduced to establish prima facie that the members of the engine crew saw the boy in a place of imminent peril in time to stop the locomotive and avoid the injury. On the afternoon of December 10, 1915, a southbound Oregon Short Line train was made up on the "boot" track immediately north of the platform of the Northern Pacific passenger station in Butte. The train was complete, except for a locomotive and dining car. The dining car of an incoming train was to be attached to the outgoing train, and to effect this change a switch engine-the locomotive in question-was employed. It was attached to the mail car, baggage car, smoking car, and day coach; the engine facing these cars towards the east with the tender to the west. As soon as the incoming train arrived, the switch engine, with the cars attached, backed to the west to secure the dining car, and in so doing ran over the Lautwe boy, causing his death. In addition to the foregoing facts which are not in dispute, the plaintiff, the boy's mother, testified:

That she was on the boot track near the Oregon Short Line freight house at a point where Delaware street, if extended, would cross the track; that she was looking to the east searching for her boy; that she saw a boy narrowly escape injury from the incoming train on the main line track immediately south of the platform; that he ran to the north and stood in the middle of the boot track, about 25 or 30 feet west of the west end of the tender of the switch engine, looking to the southwest, apparently watching the incoming train; that the switch engine moved to the west at the rate of 2 or 3 miles per hour; that the footboard of the tender struck the boy in the back, knocking him forward to the ground between the rails; that he was dragged 10 or 15 feet before the body disappeared under the tender; that Engineer Lawrence was looking out of the cab window, facing westward, "and was looking towards the boy, and should have seen the boy from where he was looking. The boy was directly in his vision, directly in line with where Lawrence was looking. *** This accident occurred, I should say, between half past 4 and 5, and it was daylight. *** When the switch engine started to back, I could see Mr. Lawrence leaning out of the cab window and looking up towards me. *** I did not know, at the time he was knocked down, that it was my boy. *** I couldn't say how many feet I was from where the boy was struck, but was quite a distance, too far to call to the boy. *** When Engineer Lawrence was looking out, leaning out of the cab window, he was looking at the boy, and the movements of the boy."

Ralph Shook testified, for plaintiff:

That he, Walter Burgman, and another boy were standing about 25 feet north of the tender of the switch engine; that they had crossed the switch track a few seconds before, and did not see the Lautwe boy; that, after the switch engine began to move to the west, Walter Burgman called out, and then "I turned west and saw the engine just about to hit the boy, and we both started to hollo"; that the fireman was in the cab looking west, and the boy was west of the engine and directly on the track, about the middle of the track, and "when I first saw him, he was about 9 feet from the engine."

The engineer testified that, about five minutes before he started to move the locomotive, he saw the Lautwe boy pass down the platform to the west with an armful of wood, then around the tender to the north where he disappeared, and that he never saw him again until after he was dead. The brakeman testified to substantially the same facts. The fireman testified that he never saw the Lautwe boy after getting upon the engine; that after the engine started to move he heard some boys on the team track hollowing, "Look out!" and "before I could realize that anything had happened I heard the engineer bringing the engine to a stop." The engineer testified that his attention was first directed to the fact that something was wrong by motions made by the mail clerk on the incoming train; that he looked down from the cab window to the rail, and saw the boy's head after it had been severed from the body, and that he immediately brought the engine to a stop. Each of the individual defendants testified that, a few days before trial, he made tests with a locomotive of the same type and size as the one in service on the day of the accident-that particular locomotive having been wrecked in the meantime and that looking from the cab window it is impossible to see a person on the track if he is as near to the tender as the evidence indicated that the Lautwe boy was standing when the engine started to move; that the tender, 21 feet long, 11 feet high, and 7 feet 6 inches wide, cuts off the view of the track for a distance much greater than that which intervened between the tender and the Lautwe boy. Other witnesses, one of whom, at least, was apparently disinterested, testified to making like experiments and with like results. According to this evidence, viewed in the light most favorable to plaintiff, a person standing on the track would have to be not closer to the rear end of the tender than 75 feet to be seen from the cab window under any circumstances.

It is conceded by plaintiff that this accident occurred at a place where the Lautwe boy had no right to be. So far as he was concerned, the railway company was entitled to the exclusive use of the yards, and the enginemen had the right to assume that the track was clear. Palmer v. Oregon Short Line R. Co., 34 Utah, 466, 98 P. 689, 16 Ann. Cas. 229. Actionable negligence arises only from a breach of legal duty. Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, 163 P. 473, Ann. Cas. 1918B, 420. Under the doctrine of the last clear chance, the duty to avoid injury arises only when the injured party is actually discovered in a position of peril, and apparently unconscious of his danger or unable to extricate himself, and the failure of the defendant to exercise reasonable care to avoid injuring him after such discovery constitutes the breach of duty. 20 R. C. L. 142. In Dahmer v. Northern P. Ry. Co., 48 Mont. 152, 136 P. 1059, this court, speaking of the doctrine of the last clear chance, said:

"A case calling for its application embodies three elements, viz.: (1) The exposed condition brought about by the negligence of plaintiff or the person injured; (2) the actual discovery by the defendant of the perilous situation of the person or property, in time to avert injury, and (3) the failure of defendant thereafter to use ordinary care to avert the injury. All of these elements must concur, else the rule has no application."

The plaintiff alleges in her complaint that the members of the engine crew actually saw the boy in a position of imminent peril. The allegation is denied in the answer, and the burden was upon the plaintiff to prove the facts alleged. This she might do by direct or circumstantial evidence. If the view from the cab of the locomotive had been unobstructed, it might well be contended that there was sufficient circumstantial evidence to carry the case to the jury (Doichinoff v. Chicago, etc., Ry. Co., 51 Mont. 582, 154 P. 924); but in view of the fact, conceded by plaintiff, that the tender was between the train crew and the boy, she is compelled to rely upon the statement of the mother that the engineer saw the boy, and upon certain admissions which it is claimed were made by the engineer and fireman at the coroner's inquest, as the only evidence proving or tending to prove that the engine crew actually saw the boy in his perilous situation. The mother testified that at the inquest the engineer said:

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