Neary v. Northern P. Ry. Co.
| Decision Date | 24 October 1908 |
| Citation | 97 P. 944,37 Mont. 461 |
| Parties | NEARY et al. v. NORTHERN PAC. RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Sydney Fox, Judge.
Action by Marie Neary and others against thin Northern Pacific Railway Company and another. Judgment for defendants and plaintiffs appeal. Reversed and remanded for a new trial.
E. E Enterline and Walsh & Nolan, for appellants.
Wallace & Donnelly, J. G. Brown, and R. F. Gaines, for respondents.
This appeal presents for review a judgment upon a verdict directed for the defendants at the close of the evidence submitted by the plaintiff. The action was brought by the plaintiff Marie Neary in her own right as the widow and heir at law of James S. Neary, deceased, and as the guardian of her minor children, to recover damages for the death of the husband and father, which, it is charged, was caused by the negligence of the defendant railway company and its engineer.
The defendant company owns extensive yards at Billings, Mont. At this point the line of its railroad extends east and west with a slightly downward grade toward the east. There are, including the main line, nine parallel tracks. To the left, going east on the main line, is track No. 1, about 14 inches lower than the main line. Measured from rail to rail, the distance between the main line and this track is variously stated by witnesses at from 5 to 8 feet. To the north of this are two other tracks, designated as the "scale lead" and the "house" tracks. Immediately to the right is a repair track, at a distance of 10 feet from the main track, so called because used to hold cars undergoing repairs. At the time of the accident, there were cars on this track. The other tracks are further toward the south. The defendant company and the Chicago, Burlington & Quincy Railway Company make joint use of these yards and tracks, the trains of the latter leaving its line, which ends at Huntley, 12 miles to the east, and running upon the main line of the defendant company, thence into the yards. Under this arrangement, Billings becomes the western terminus of the Chicago, Burlington & Quincy Line. Its west-bound trains are either broken up at this point or are transferred to the defendant company, and its east-bound trains, except the passenger trains, which are transferred to it at this point by the defendant company, are made up there. The employés of both companies frequently go upon all of these tracks in the performance of their duties. The deceased was in the employ of the Chicago, Burlington & Quincy Company as a freight conductor, and had brought his train into Billings at least 50 times during the previous 8 months. The yards extend through the central portion of the city, and for most of the distance-several thousand feet-lie within the city limits. On the morning of April 29, 1905, the train of the deceased, having been made up for an outgoing run to Sheridan, Wyo., was standing on track No. 1, headed toward the east, awaiting the coming in of passenger train No. 6 from the west on the line of the defendant company. The engine was attached and steam was up. It was to follow train No. 6 to Huntley, where the latter also left the main line of the defendant company and became No. 42 on the Chicago, Burlington & Quincy Road. Train No. 6 was due at 9:10 o'clock. While it was a few minutes late, its arrival was momentarily expected; in fact, it arrived nearly on time. The passenger depot is near the east end of the yards. The engine of the outgoing freight train stood at a point about 800 feet west from this depot. The train was about 1,300 feet in length, thus putting the caboose attached to its rear end, about 2,100 feet from the depot. There is a street crossing about 300 feet west of the depot. Witness Gintz, who, was a brakeman on the train of the deceased, testified that about 9:10 o'clock he came to the caboose to change his shoes and to get the train ready to leave; that, as he went in, he met the deceased going out to check the train-that is, to take the numbers, lettering etc., on the cars constituting it, and write them into his designation book-that this was one of his duties; that he did not again see him alive; that it was customary for one checking trains to walk along on the right-hand side toward the engine parallel to the train, about six feet distant, in order to obtain an easy view of the numbers and lettering; that when in the yards, as in this instance, the conductor in checking his train walks between the rails of the track immediately to the right, because the numbers are on the right, if the track is clear; that this was the customary way of checking trains in the Billings yards; that a distance of 6 feet from the train as it stood that morning would put the deceased between the, rails of the main track; that the main track to the west for 3 1/2 miles is straight and the view unobstructed; that a few minutes after entering the caboose he heard the noise of train No. 6, about half a mile away, and saw it through the rear door; that it passed the caboose, being then within the city limits, at the rate of 25 to 30 miles per hour; and that, as it did so, the whistle was blown, giving a rolling sound. From statements of a witness who was at the passenger depot waiting for the incoming train, and another who was standing in the yards between the main line and track No. 1, about 200 yards away, and witnessed the accident from that point, it appeared that the deceased was at that time engaged in checking his train, walking eastward between the rails of the main line. The latter of these states that he heard a whistle, and, upon turning to look, saw the train within "a rail and a half" of the deceased, and that immediately afterwards it struck him, throwing him in the, air half as high as a box car and to the right. The deceased seemed to be writing, standing with his back toward the incoming train. When the train was stopped, immediately after the collision, the body of the deceased was found lying opposite one of the Pullman cars attached to train No. 6, close to the repair track, and about 600 feet from the caboose. It was picked up, and taken on the train to the depot. The other witness stated that he was standing at the passenger depot observing the train as it came in; that he did not hear the whistle; that he saw no emission of steam; and that he did not hear the bell ring. This train consisted of 9 cars, and was about 600 feet in length. By the application of the air brake, such a train could be stopped within 250 or 300 feet when going at the rate of 25 or 30 miles per hour.
If going at the rate of 6 miles per hour, it could be stopped within a distance of 6 feet. Application of the air brake in emergencies-that is, with full braking power-would cause passengers in the Pullman to experience a jar. None was felt by the stopping of the train at this time. Several switch engines were at work in the yards, making more or less noise. Train No. 6 was due to leave at 9:30. The employés of the Chicago, Burlington & Quincy Company had time cards showing the hour of its departure from Billings, but none of the hour of arrival. The atmosphere was clear, and the sight and hearing of the deceased were good. There was an ordinance of the city of Billings in force at the time declaring it unlawful to move trains within the city limits at a rate of speed exceeding six miles per hour. A rule of the defendant company, introduced in evidence, is as follows: The words "under full control," as used in this rule, are understood by railroad men to mean "ready to stop at any moment; there is danger ahead."
The complaint alleges that the deceased was upon the track in the performance of his duties; that his presence there was well known to the defendant Frost, who was driving the engine of the passenger train; that he, through gross and wanton negligence, failed to give any signal of the train's approach; that through his gross and wanton negligence he was running at an unlawful and dangerous rate of speed; that because of these gross and wanton acts of negligence he failed to stop the train, and thus prevent the accident; and hence that the death of the deceased was due to the gross and wanton negligence of the defendants. The defendants allege that the death of the deceased was due to his own negligence. The trial of the issues resulted as above stated. The principal questions presented for decision are two: (1) Was the deceased as a matter of law guilty of contributory negligence? (2) Is contributory negligence a bar to recovery in this case?
1. The first of these questions must, we think, be answered in the affirmative. But one legitimate inference can be drawn from the facts stated. The deceased was a man of experience-so much so that he had been put in charge of a train. He had been in and out of these yards many times during the preceding eight months, and must be presumed to have been acquainted, not only with the hazardous character of his employment generally, but also with the special dangers to be encountered there; for he had performed the same duties there at least fifty times during these months. Several switch engines were at work and the noise from them tended necessarily, as he knew, to obscure more or less the signals and noise of the east-bound train, which he momentarily expected to arrive. So far as the proof...
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