Meehan v. Great Northern Ry. Co.

• Decision Date: 22 March 1911
• Citation: 114 P. 781,43 Mont. 72
• Parties: MEEHAN v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

114 P. 781

43 Mont. 72

MEEHAN v. GREAT NORTHERN RY. CO.

Supreme Court of Montana

March 22, 1911

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by Katherine Meehan, as administratrix of the estate of John Meehan, deceased, against the Great Northern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Breen & Hogevoll, for appellant.

Veasey & Veazey, for respondent.

SMITH J.

This cause was submitted to the district court of Silver Bow county, sitting without a jury, upon an agreed statement of facts. The court found in favor of the defendant Great Northern Railway Company (the other defendants having been dismissed from the action), and judgment was entered accordingly. From that judgment, an appeal has been taken.

From the statement it appears that two tracks of the defendant company, known as the "Stockyards" and "Y" tracks, extend through the city of Butte; that Warren avenue, so-called, extends from a northerly direction up to the right of way of the railway company in the vicinity of these tracks; that there is another street called Warren avenue, extending up to the right of way of the defendant company on the opposite side of the tracks, but which, if extended, would not connect with the first-named Warren avenue; that neither of said streets has been extended as a public highway across the tracks of the defendant, and the intervening space has never been dedicated to public use as a highway. It appears, however, that "for a period of at least fifteen years that portion of said ground over which said 'Stockyards' track and 'Y' track are constructed, which lies between the lower 'Y' switch and the 'Stockyard' switch in said track have been continually used, without any invitation from, but with the knowledge of, said railway company and its officials, by the people of that vicinity as pedestrians, for the purpose of crossing on foot from that portion of said city lying easterly and northeasterly from said tracks, to that portion lying on the southerly and southwesterly side thereof, and especially by large numbers of miners in going to and from their homes and to and from the mines northeasterly thereof and to and from the Western Iron Works and other industries in which they are engaged; that while said crossings have been made by such persons indiscriminately at various points between said switches, the great number of said crossings has been made along a beaten footpath, and over a strip of ground which would have been within the limits of Warren avenue if it had been extended southerly or southwesterly; that said tracks during all the times herein mentioned were, and still now are, built upon a railway grade or roadbed, the slope of which towards said Western Iron Works was and is about two feet vertically at the place where the deceased was killed and varies in other places from two to four feet as regards that portion thereof facing the Western Iron Works, and the length of said slope is about five feet from the ties to the level of the surrounding country, and the slope of the roadbed facing away from the Western Iron Works is about four feet deep vertically, with a length of slope of about 10 feet; that John Meehan, deceased, left the saloon of John Skubitz at some time after midnight of October 6, 1908 intending to go to his cabin, which was then located in the vicinity of the buildings of the Largey Lumber Company (on the opposite side of all the Great Northern Railway tracks), and upon leaving said saloon stated to Skubitz: 'I am going up Warren avenue where I will only have two tracks to cross, and will avoid the rough travel and the danger of all the switching while crossing the yards'; that no one saw the deceased after he left the saloon, until about 3 o'clock on the following morning, when he was found lying across the 'Y' track aforesaid, with one leg across said track; the leg had been run over and cut off, and the other leg broken by some car or cars of the Great Northern Railway Company, in consequence of which he was then in a dying condition, and subsequently died within a few hours; that the train of cars mentioned constituted the only cars or car or engine, or other vehicle, owned or operated by the Great Northern Railway Company or its employés, that was on any part of said 'Y' track on the night of October 6th or the morning of October 7th; that a passenger train of the defendant company backed over the 'Y' switch on the night in question until the rear car thereof had reached a point beyond the point where the deceased was found; that neither on the night of October 6th nor the morning of October 7th was any portion of said 'Stockyards' or 'Y' track lighted by any means of illumination furnished by the railway company, but that during the whole of said night an arc light of the same size and capacity as is used elsewhere in the city of Butte for street lighting purposes was located at a point about 300 feet distant from the place where the deceased was found; and said light was actually burning and...