Neary v. Northern P. Ry. Co.

Decision Date06 July 1910
Citation110 P. 226,41 Mont. 480
PartiesNEARY et al. v. NORTHERN PAC. RY. CO. et al.
CourtMontana Supreme Court

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Action by Marie Neary, widow and heir at law of James S. Neary deceased, and others, minors and heirs at law of the deceased, by their guardian ad litem, Marie Neary, against the Northern Pacific Railway Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Under a charge of gross negligence, a recovery may be had on proof of ordinary negligence, for the word "gross" will be treated as surplusage, though Rev.Codes, §§ 5253, 5295, 5300, 5306, 5331, 5354, 5355, recognize a distinction between degrees of negligence.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellants.

E. E Enterline and Walsh & Nolan, for respondents.


This is the second appeal of this case. Neary v. Northern Pacific Ry. Co., 37 Mont. 461, 97 P. 944, 19 L. R. A. (N. S.) 446. Upon the first trial the district court of Yellowstone county directed a verdict for the defendants, and judgment in their favor was entered accordingly. This court reversed the judgment, and remanded the cause for a new trial. It was held (1) that the deceased, Neary, was guilty of contributory negligence, and (2) that the cause should have been submitted to the jury upon the question of the defendants' negligence in failing to use reasonable care to avail themselves of the last clear opportunity to avoid the catastrophe. The second trial resulted in a verdict for the plaintiffs in the sum of $25,000 damages. From a judgment entered thereon and an order denying a new trial, the defendants have appealed.

The main facts in the case are fully set forth in the former opinion of the court, prepared by the Chief Justice. As to the statement therein contained it is now said by counsel for the appellants, in their brief: "As the statement of facts so fully set forth in the court's opinion will be sufficient for practically all the purposes of a statement in this brief, we will herein adopt that statement, with three exceptions: (1) The first of these exceptions is the apparent assumption, as an established fact, that Neary was upon the tracks of the defendant railway company in the discharge of his duties and with the express consent of the railway company. We claim that it can neither be assumed nor found as a fact that the employés of the C., B. & Q. Railway Company used the tracks and switches of the defendant company's yards, by agreement, as charged in the complaint, that the said employés in so using the yards frequently walked across and along the tracks, and that the railway company and its servants had 'full knowledge and notice of said fact.' (2) The statement of facts in the decision contains the following language: 'The yards extend through the central portion of the city, and for most of the distance--several thousand feet--lie within the city limits.' As far as it goes, this statement is correct; but upon the second trial it was established in addition that the yards of the company were inclosed with fences, from practically Twenty-Ninth street (the first street east of where the accident happened) to a point about 6,680 feet west thereof, and that in this distance there is not a single street crossing of any kind through the yards. Also, that the west limits of the city were several thousand feet east of the public road crossing at the point 6,680 feet west of Twenty-Ninth street. (3) The third exception is that considerably more evidence was introduced bearing upon the question of the ability of the engineer to have stopped his train after he discovered that Neary was not conscious of his approach, which, while conflicting, would not warrant a finding that the engineer was 'wantonly and grossly' negligent in his actions."

1. At the second trial the ordinance of the city of Billings declaring it to be unlawful to move trains within the city limits at a rate of speed exceeding six miles per hour was offered in evidence and objected to by defendants' counsel on the ground "that the ordinance is unreasonable and not within the power of the city council, as applied to the defendants in these yards, for the reason that there is no open crossing on said tracks for approximately 2,000 feet, used by the public eastward of this accident, and approximately 4,250 feet or three-quarters of a mile westward. The yards were inclosed by a fence, and were the private yards of the company, not used by the public. The only tendency of the evidence would be to prove primary negligence and that would be immaterial in this case." The court overruled the objection.

The first point urged is fully explained by the phraseology of the objection itself, and will be considered at this time. The second will be taken up hereafter when we come to consider the effect of the contributory negligence of which it has been held the deceased was guilty. It is earnestly contended that the ordinance, in view of the additional facts brought out at the second trial, is unreasonable, inoperative, and void in so far as it is sought to apply the same to the place where Neary was killed, and the following cases are cited in support of the contention: Evison v. C., St. P., etc., Co., 45 Minn. 370, 48 N.W. 6, 11 L. R. A. 434; Burg v. Chicago, etc., Co., 90 Iowa, 106, 57 N.W. 680, 48 Am. St. Rep. 419; Meyers v. Chicago, R.I. & P. Co., 57 Iowa, 555, 10 N.W. 896, 42 Am. Rep. 50; City of Plattsburg v. Hagenbush, 98 Mo.App. 669, 73 S.W. 725; Southern Indiana Ry. Co. v. City of Bedford, 165 Ind. 272, 75 N.E. 268; White v. St. L., etc., Ry. Co., 44 Mo.App. 540; Zumault v. K. C. & I. Air Line, 71 Mo.App. 670; Kunz v. Oregon R. & N. Co., 51 Or. 191, 93 P. 141, 94 P. 505. On the part of the respondents it is insisted (a) that the ordinance was considered by this court as an essential feature of the case upon the last appeal, and, the facts relating to the physical situation in the Billings yards being substantially the same at both trials, the court is precluded by the law of the case from giving consideration to the appellants' objection to the ordinance on this appeal; (b) that there is no pleading on the part of the defendants which will warrant them in raising the question presented. We are of opinion that this latter position is well taken, and it will not, therefore, be necessary to consider the respondents' first contention.

It is alleged in the complaint that on the date of the accident there was "in force in the city of Billings" the ordinance in question, which had been duly enacted. This allegation is met by a general denial on the part of the appellants. It is asserted by counsel that their denial that the ordinance was "in force" gives the right to contend that it is unreasonable and void as applied to this particular portion of the city's area. We are unable to agree with them in this. To us it seems clear that the denial in the answer simply raises the question as to whether any such ordinance as that referred to in the complaint, was in existence at the date in question. The ordinance did in fact exist; it was offered in evidence. If for any reason the defendants desired to take the position that, on account of peculiar physical conditions, it ought not to be considered as in force and effect in a particular portion of the city, to wit, that part of the Billings yards wherein it was claimed to have been violated, they should have set forth the facts upon which their claim of an exception from the operation of the ordinance was based. See Kunz v. Oregon R. & N. Co., 51 Or. 191, 93 P. 141, 94 P. 504.

It is urged by appellants' counsel in their reply brief that as the evidence offered by them relating to the nature of the country to which the ordinance prima facie applied was admitted without objection, while they objected to the ordinance, the court's charge thereon and the refusal of their offered instructions as to the same, a theory of the case was thus established in the court below which may not be departed from in this court, and, as the case was tried as if the issue was made, it is now too late to urge the contrary (citing Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994). We, however, are unable to determine that any such theory was adopted in the district court. It is true that the testimony referred to was received without objection, but the purpose of offering it was not explained at the time, and apparently it was material and competent as bearing upon other issues in the case. The ordinance itself was offered generally, and the court gave no reason for its ruling on appellants' objection. For aught we know, the point now raised by the respondents may have been the basis of that ruling.

2. Defendants, at the trial, after all of the evidence had been submitted, moved the court for an order directing a verdict in their favor. The motion was properly denied. The testimony at the second trial was substantially the same as at the first. This court held that the case should be submitted to the jury, and the trial court properly followed that direction. Under these circumstances the former decision established the law of the case. International Boom Co. v. Rainy Lake River Boom Co., 104 Minn. 152, 116 N.W. 221; O'Neill v. Northern Assurance Co., 155 Mich. 564, 119 N.W. 911; Easterly v. Jackson, 36 Mont. 205, 92 P. 480.

3. The complaint is peculiar in its averments. It alleges that "the said defendants then and there unlawfully and grossly negligently and wantonly omitted to give any signal by bell or whistle," and "ran and drove the said train at a rate of speed grossly negligently and wantonly high," and "unlawfully, wantonly and grossly carelessly and negligently drove and...

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