Mitchell v. Boston & M. Consol. Copper & Silver Min. Co.
| Decision Date | 12 November 1908 |
| Parties | MITCHELL v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Action by Stephen Mitchell, by William Mitchell, guardian ad litem against the Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.
A. C Gormley, for appellant.
Ransom Cooper, Sam Stephenson, and W. G. Downing, for respondent.
On the night of October 14, 1906, plaintiff was operating an electric motor attached to a train of 10 cars in the smelter of the defendant company at Great Falls, and ran the same into another train of cars, receiving serious injuries as the result of the collision. At the time of the accident plaintiff was between 18 and 19 years of age, and had worked in the smelter and about the motors for some 3 years. The testimony, including his own, shows that he knew how to run a motor, and had had more or less experience in handling one in the smelter. He alleges in his complaint that at the time of the accident he was in the employ of the defendant "as a laborer and servant; the duties of his employment requiring him to 'chase' cars and assist in loading and unloading said cars." He further alleges: That he was ordered by one Krejci, the general foreman of the smelter, to run a motor on the night in question. That he made one trip, and was injured on the second: (1) By reason of the negligence of the defendant in requiring him to perform a hazardous act, requiring judgment, skill, and experience, and outside of the line of his employment, which was nonhazardous. "That the defendant and its superintendent and foreman, including Krejci, knew, and had reason to know, that the plaintiff was of immature years, and did not have the experience and judgment necessary for the performance of the service so required of him." (2) By reason of defendant's failure to provide sufficient or adequate lights, "said place being at that time so dark that plaintiff was unable to see the other train." (3) By reason of a defective cab (4) By reason of a failure on the part of the defendant to make "some rule or regulation and giving notice thereof to their employés so as to prevent any collision between trains such as happened on said night, and which defendant and its said foreman should have anticipated if they had exercised reasonable care; and also (5) in not giving plaintiff any caution and instruction with reference to the said work he was ordered to do, so as to enable him to understand the dangers he would encounter and how to do the work with safety, the defendant and its said foreman then and there well knowing, as the fact was, that this was a temporary work, of a peculiarly dangerous character, and that the risks and hazards of the work and the proper mode of doing the same were not obvious or known and appreciated by plaintiff by reason of his youth, incapacity, and inexperience." As a result of the trial the jury returned the following special and general verdicts:
Judgment for the defendant was entered by the court, and, from such judgment and an order denying a new trial, the plaintiff has appealed.
Appellant's first assignment of error is that the court was wrong in submitting the six special questions to the jury. It appears from the testimony of Elliott, Snow, and Seidler that plaintiff was along in August, 1906, warned never to go upon a motor again or attempt to run one because he had had a serious accident while operating one and had caused considerable damage; the reason of the accident, according to the witnesses, being plaintiff's "reckless" running. Plaintiff denied that he received any such warnings or instructions. He testified that on the night of October 14th he was told by Krejci to run the motor. He demurred to this, saying he preferred to "chase" cars or do something else, but Krejci told him to either run the motor or go home. Krejci denied that any such conversation took place, and said that the first time he saw plaintiff that night he (plaintiff) was operating the motor. Krejci had no knowledge that plaintiff had been instructed not to run the motors.
It is the contention of the appellant that the first three special questions submitted were not within the issues. With this we agree, for the reasons hereafter to be pointed out. But the case was tried upon the theory that these questions were material, and we cannot see where plaintiff was prejudiced by the submission of the same to the jury. Plaintiff had the privilege of asking the court to also submit to the jury the question whether Krejci ordered him to run the motor. If these matters were material, it would have been proper, and perhaps advisable, to submit this special question also.
We cannot agree that there was any error in submitting interrogatories 4, 5, and 6 to the jury. Indeed, we think they were properly submitted, as taking the opinion of the jury upon the only issue in the case in the light of plaintiff's own testimony. Again, it is urged that the evidence is insufficient to justify the verdict, in that "it conclusively shows that the plaintiff was of immature years, and lacked the experience, judgment, and capacity to run the motor." We have carefully studied the testimony, and cannot agree with this. Our opinion is that the general verdict is abundantly justified by the evidence, and that the last three special findings are amply supported.
But the appellant contends "the evidence conclusively shows that running a motor was outside of plaintiff's regular duties, and that defendant neglected to give him any instructions, caution, or warning." This assignment of error relates, of course, to the general verdict. There is some testimony in the case to the effect that running a motor, when occasion required, was not outside of plaintiff's regular duties as car chaser and wheeler. We cannot undertake to say that a negative finding on that question is not supported by substantial evidence. But what caution or warning did the plaintiff require? This question was fully considered in Forquer v. Slater Brick Co., 37 Mont. 426, 97 P. 843 (just decided). What is there said in regard to pleading fully applies to the case at bar, but we shall pass it, as counsel seem not to rely upon it. No warnings in regard to the motor were required by this plaintiff, for two reasons: (1) He knew all about the machine; and (2) he was not injured by reason of any patent or latent defect in the motor. The reason for warning a servant is either to impart to him knowledge that he does not possess, or to impress upon him the necessity of being careful and bearing in mind the danger. Regardless of whether Krejci instructed plaintiff to operate the motor on the night in question, the orders he received from Messrs. Elliott, Snow, and Seidler were ample warning to him, not only of the danger of "reckless" running, but also any dangers connected with the machine itself. As a matter of fact, as we read the testimony, the jury would have been well justified in concluding that the plaintiff knew all about these motors and the method of operating them. Of course, it was not negligence per se to change this young's man occupation from that of wheeler or car chaser to that of motorman. The allegation of the complaint that such change was made must be supplemented with testimony showing a necessity for additional instructions relating to the new employment.
The third particular in which the evidence is alleged to be insufficient to justify the verdict is this: "That it conclusively shows that defendant neglected to provide lights so as to enable plaintiff to see on the night in question, and thereby avoid injury." In our judgment there was sufficient evidence to justify finding No. 6.
Again it is said that "the evidence conclusively shows negligence on the part of the defendant in failing to make rules for the running of trains so as to avoid collisions." It is not suggested what rules should have been promulgated. On the other hand, there is testimony that no rules were necessary or...
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