McManus v. Butte Electric Ry. Co.

• Decision Date: 04 October 1923
• Docket Number: 5277.
• Citation: 219 P. 241,68 Mont. 379
• Parties: MCMANUS v. BUTTE ELECTRIC RY. CO. ET AL.
• Court: Montana Supreme Court

219 P. 241

68 Mont. 379

MCMANUS v. BUTTE ELECTRIC RY. CO. ET AL.

No. 5277.

Supreme Court of Montana

October 4, 1923

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by John McManus, by his guardian ad litem, Rose McManus against the Butte Electric Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

J. L Templeman, Sydney Sanner, and Fred J. Furman, all of Butte for appellants.

C. S. Wagner and Walker & Walker, all of Butte, for respondent.

COOPER J.

Shorn of legal verbiage, the complaint, in two counts, alleges: First, that the defendant Crossman, as motorman in charge of a street car of the defendant company, carelessly, negligently, and wrongfully ran his car on Front street between Montana street and Utah avenue in the city of Butte at a rate of speed prohibited by Ordinance No. 434, to wit, in excess of 15 miles per hour, and as a proximate result of so running the car, he ran over and killed the plaintiff's minor son, John McManus, a boy of 10 years of age; second, that Crossman, at the same time, carelessly, negligently, and wrongfully ran his car over and across Front street where it is crossed by Colorado street, without giving the alarm required by the ordinance mentioned, and as a proximate result thereof ran over and killed John McManus, Jr.

The defendants interposed a general and special demurrer to each of the two counts, urging that from the recitals therein only legal conclusions could be drawn, and that in the absence of a statement of the facts, circumstances, and details tending to show that the violation of the ordinance was a proximate cause of the death, it did not state a cause of action.

After the district court had overruled the demurrer, the defendants filed their joint answer denying the averments of both counts, and pleading affirmative defenses. After alleging that the car was of suitable type, pattern, and design, and all its parts and appliances without defect and in good operating condition, they stated that as it traveled easterly on Front street to the point where Colorado street crosses Front street, it met a large automobile truck which was then coming along the north side of Front street in a westerly direction; that defendant Crossman, the motorman, kept a vigilant watch of the truck as he traveled easterly along Front street, and when the truck was a safe distance from the street car, the boy was upon the rear end of the truck, but not then within his vision, and he could not by the exercise of reasonable or any other degree of care discover his presence, or that he was then upon the truck or upon the street; that at approximately the time the front end of the truck was opposite the front end of the street car, the boy descended from the rear end of the truck, and, taking a few steps in a generally southerly direction, fell under the street car in such a fashion that the rear trucks of the street car passed over the boy and killed him; that the accident was due to the careless and negligent act of John McManus, Jr., in jumping off of the rear end of the truck and running into the side of the street car at a time when the accident was utterly unavoidable, and was due solely to the careless and negligent acts of the boy; and that, after the motorman discovered him, he exercised every agency within his control to avert the accident.

To the answer plaintiff filed a reply, and the cause was tried in the court below with the aid of a jury. A verdict in the sum of $3,500 was returned and judgment entered thereon. Hence this appeal.

At the beginning of the trial, the defendants objected to the reception of any evidence in the case upon the ground that neither the bare allegation in the first count that the car was running at a speed prohibited by Ordinance No. 434 of the city of Butte, nor the allegation in the second count that the motorman failed to give the signals required by the ordinance referred to, proximately causing the injury, stated a case for the jury; and that without averment, in each count, of facts, circumstances, and details of the happening, which of themselves constituted negligence, no evidence was admissible in support of plaintiff's case. This objection was likewise overruled. Appellant's counsel insist that the rulings of the court in both instances were erroneous, and in their brief say:

"There must be a statement which shows in some fashion that certain acts and omissions of one party proximately resulted in injury and damage to another party. It is not enough to say that one thing happened and that another thing happened, and then draw the legal conclusion that one flowed from the other."

What does the language of the complaint import? Plainly, that proceeding directly from defendants' negligence in operating the car at a speed in excess of eight miles per hour, was the running down and injury to John McManus, Jr. In Stein v. United Railroads, 159 Cal. 368, 113 P. 663, it was held that an allegation that the defendant "operated, ran and conducted one of its cars upon and along said Turk street * * * in such a careless, negligent, reckless, wrongful, and unlawful manner that the said car, when it came to the crossing by the street known as Buchanan street and the said Turk street, while going in an easterly direction, ran into and upon the plaintiff and severely injured him" was sufficient. The court quoted from a former decision the following:

"It is well settled that negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. But it must appear from the facts averred that the negligence caused or contributed to the injury."

The opinion then proceeds:

"It may be said further that even if it were error (and it was not), to overrule the demurrer for uncertainty, it was error without prejudice unless the demurring party was misled by the defects in the pleading, and the case was not fairly tried on the merits. Here it appears...