Nelson v. Northern P. Ry. Co.

• Decision Date: 17 April 1915
• Docket Number: 3492.
• Citation: 148 P. 388,50 Mont. 516
• Parties: NELSON v. NORTHERN PAC. RY. CO. ET AL.
• Court: Montana Supreme Court

148 P. 388

50 Mont. 516

NELSON v. NORTHERN PAC. RY. CO. ET AL.

No. 3492.

Supreme Court of Montana

April 17, 1915

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Action by Lars M. Nelson against the Northern Pacific Railway Company and J. T. Sheedy. Judgment for defendants, and from the judgment and an order denying new trial, plaintiff appeals. Judgment and order affirmed.

E. A Carleton, of Helena, for appellant.

Gunn Rasch & Hall, of Helena, for respondents.

BRANTLY C.J.

The injuries for which recovery is sought in this action were sustained by the plaintiff during the course of his employment by the defendant railway company as section foreman. The action was brought under the federal Employers' Liability Act, approved April 22, 1908 (chapter 149, 35 Stat. 64; U.S. Comp. Stat. Supp. 1911, p. 1322), as amended by the act approved April 5, 1910 (chapter 143, 36 Stat. 291; U.S. Comp. Stat. Supp. 1911, p. 1325). It is alleged in the complaint that the defendant railway company, hereafter referred to as the company, was the owner and was engaged in the operation of a line of railway as a common carrier in interstate commerce, and that at the time of his injuries plaintiff was in its employ in that business. The evidence discloses these facts:

Plaintiff came to this country from Norway in 1906. He is not well enough acquainted with the English language to read and write it. He was in the employ of the company as a section hand from May of that year until July, 1908. He again entered the company's service as section foreman in November, 1910, and continued therein until June 8, 1911, when he was injured. He had become thoroughly familiar with his duties. There was under his charge a crew of seven men. The work allotted to him and his crew was to keep in order a section of the line of the company's railway, extending about 5 miles west of Garrison, in Powell county, a regular stopping station for all trains. The railway has a double track from this station to Missoula. The headquarters of plaintiff and his crew were at Garrison. A passenger train designated as No. 41 was due to leave Garrison for the west, according to the regular schedule, at 6:50 o'clock in the morning of June 8th. At 6:55 o'clock, before taking out his crew, the plaintiff went to the station to get his mail and ascertain the movement of trains, particularly of train No. 41, the leaving time of which he knew. On this morning it was behind schedule time, but that fact was not noted on the bulletin board kept at the station. If the train was on time, plaintiff with his crew followed it from the station, the work for the day beginning at 7 o'clock; otherwise it was necessary to keep a lookout for it to avoid being run down by it. He could observe the movement of the train, because it was visible from his house as it approached and left the station. He supposed that the train had left the station, though it does not appear that he made any effort to ascertain whether this was so, other than to consult the board. He left the station with his crew at 7 o'clock, riding on a hand car. He made three stops as he proceeded--one for the purpose of inspecting a bridge, and the others to listen for the coming of a train. These stops were necessary because the car made some noise, and plaintiff was keeping a careful lookout for trains. Each of them consumed some minutes. After passing milepost 54 a stop was made to listen, but, no train being within hearing, plaintiff proceeded, all the members of the crew "pumping" the car, four of them facing to the west, and four to the east. There are three curves in the line of track between mileposts 52 and 55, the last known as the "Big Bend," a sharp curve about a third of a mile in length and ending near the beginning of the mile between posts 54 and 55. After the last stop the car had been kept going at a speed of about 5 miles an hour, for a distance of half a mile to a point midway between posts 54 and 55. At this point the attention of plaintiff was called by one of the crew to the approach of belated train 41. Looking back ten seconds later he saw the smoke of the engine, and a second later the train itself approaching at a speed estimated by him to be from 50 to 60 miles an hour. When he saw the smoke, the train was about one-fourth of a mile away. Effort was at once made to stop the car, and it was stopped within a short distance, the length of which plaintiff could not state further than to say within three rail lengths or 99 feet. Two of the men left the car when the approach of the train was first noticed; two others sought places of safety as soon as the car came to a stop. The plaintiff, assisted by the three who remained, attempted to remove the car to the other track. He and one of the men, Leopardi, took hold of the west end; the other two at the east end. As they were lifting the car, Leopardi fell, thus hindering the removal of it to the other track. The plaintiff again observed the train when it was a distance of from 200 to 300 feet away. He "felt that the way the train was going there was time enough for the men to lift the car off the track in between the two tracks." Plaintiff and Leopardi succeeded in getting their end off the track and beyond striking distance of the train. The men at the other end did not succeed in moving it beyond striking distance, with the result that the train in passing struck one corner of it, and by the impact hurled it against plaintiff, breaking both his arms, and otherwise injuring him. Leopardi was killed. Plaintiff expressed the opinion that the car could have been gotten safely off the track and out of the line of danger if the men at the other end had been active. He said:

"If the men behind had done as well as we men in front, we could have got the car cleared from the track."

The car with the tools upon it was 600 or 700 pounds in weight. The plaintiff did not hear a whistle or bell at any time though his hearing was good. Where he was the whistle could be heard about a mile. Questioned as to why he did not leave the car and go into a place of safety, he stated:

"A. In charge, as section foreman, I was responsible for hand car and for the rest of the company's property that I was carrying. That is the first thing, and the last thing was 41 was behind, passenger train was behind, and if I had skiddooed and left the hand car on the track, 41 would have run into it, and might be ditched with it. Might have ditched 41 with the hand car, do you know? Q. Yes; anything else? A. And 41 was loaded with good many people; there might be some injuries and killing."

It is alleged that the defendants were guilty of negligence in three particulars: (1) In the failure of defendant Sheedy, the engineer in charge, to ring the bell or sound the whistle to notify the plaintiff of the approach of the train so that he could get out of its way; (2) in running the train at a dangerous rate of speed, when, by the exercise of ordinary prudence, defendants should have known that plaintiff would be at or near the place where he was injured, in the discharge of his duties as section foreman; and (3) in the failure of the company to have its employés at Garrison post notice upon the bulletin board that train 41 was late.

The answer, besides denying the negligence charged, alleges these affirmative defenses: That the plaintiff's injuries were caused by his own negligence; that he was guilty of contributory negligence; that he assumed the risk, and that, subsequent to his injuries, he had released and acquitted the company of liability in consideration of its payment to him of $300. The replication assails the validity of the release on the ground of fraud and deceit. At the close of plaintiff's evidence the court granted a nonsuit on the ground, among others, that the complaint does not allege, and the evidence fails to disclose, culpable negligence on the part of defendants, and directed judgment accordingly. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.

It is the rule recognized by the courts everywhere that, in order for plaintiff to recover for personal injuries suffered by reason of a breach of duty owed to him by defendant, it is indispensably necessary that he allege facts and circumstances disclosing such breach of duty, and also establish by his evidence that it was the proximate cause of his injury. Monson v. La France C. Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549; Bracey v. Northwestern Imp. Co., 41 Mont. 338, 109 P. 706, 137 Am. St. Rep. 738; 4 Labatt on Master & Servant, § 1570. The rule applies as well to those breaches of duty expressly enjoined by statute upon employers for the protection of their employés in the operation of railways and the prosecution of other hazardous pursuits, as to violations of those obligations which, in the absence of statutory provisions, the employer is under to his employés. Monson v. La France C. Co., supra.

At the hearing in this court counsel for plaintiff stated that he would not rely upon the charge that the company was guilty of...