Nixon v. Montana, W. & S. Ry. Co.

• Decision Date: 11 December 1914
• Docket Number: 3418.
• Citation: 145 P. 8,50 Mont. 95
• Parties: NIXON v. MONTANA, W. & S. RY. CO. ET AL.
• Court: Montana Supreme Court

145 P. 8

50 Mont. 95

NIXON v. MONTANA, W. & S. RY. CO. ET AL.

No. 3418.

Supreme Court of Montana

December 11, 1914

Appeal from District Court, Carbon County; Geo. W. Pierson, Judge.

Action by O. R. Nixon against the Montana, Wyoming & Southern Railway Company and others. From a judgment for defendants plaintiff appeals. Affirmed.

Mackel and Tyvand, of Butte, for appellant.

John G Skinner, of Red Lodge, for respondents.

SANNER J.

The plaintiff elected to stand upon his complaint after a general demurrer thereto had been sustained. Judgment for the defendants was entered, and this appeal is the result.

The material allegations of the complaint, pleaded as one cause of action, may be epitomized as follows: That the plaintiff is the father of Emma Nixon, who was run over and killed by one of defendants' trains on December 5, 1912; that at and for some years prior to that time the defendant company was engaged in operating a railway through Bear Creek, an unincorporated village in Carbon county; that it was the duty of said company to maintain on both sides of its track a good and legal fence and to keep at its crossings cattle guards over which cattle and other domestic animals could not pass but in this duty it wholly and negligently failed; that at the time of the accident Emma Nixon was eight years old and resided about 1 1/2 miles west of Bear Creek, south of the company's track; that she, together with a great number of other children residing in the same neighborhood, attended school at Bear Creek, north of the track; that because of defendants' failure to maintain a good and legal fence it became and was the custom of such children to walk upon said track, particularly between 3 and 5 p. m. of each day, except Saturdays and Sundays, and said track, for many years prior to the date of the accident, had been used as a common highway for pedestrians en route to and from Bear Creek, all of which was well known to the company; that it was also a common custom for such children, when returning from school by way of said track, to attempt to ride upon the rear end of the trains traveling thereon, especially if such trains were moving slowly, and this the defendants well knew; that at the time of the accident one of the company's trains was moving slowly between Bear Creek and the residence of Emma Nixon, which train consisted of nine cars, two of which cars were placed in an unusual position, to wit, behind the caboose; that said train, so made up and so moving, was attractive to children and was dangerous; that defendants should have known these facts, and should have known that such children would attempt to ride said train, and should, in the exercise of ordinary care, have placed some person upon the rear thereof, to prevent such children riding thereon; that defendants failed to do that, or to do anything in that behalf; that Emma Nixon, and other children, entered said track at a point where it was the duty of defendants to have kept a fence, and, being upon said track to the knowledge of defendants, was attracted by the train so made up and slowly moving, and was thereby impliedly invited to ride the rear thereof, and attempted to do so, being too young to appreciate the danger; that her death was the result of that attempt.

The question presented is whether a cause of action is stated in the foregoing facts, bearing in mind that the complaint stands confronted only by a general demurrer, and that the duty of this court is to search it from end to end and determine whether its sufficiency can be reasonably asserted upon any theory. The appellant insists that a cause of action is stated under (1) the statutory duty imposed upon railway companies to fence, and (2) under the common-law duties arising upon implied invitation.

1. The application to this case of the statutory duty imposed upon railway companies to fence is erroneously assumed in consequence of the decision of this court and some authorities cited in Conway v. Monidah Trust, 47 Mont. 269, 132 P. 26. A moderately discriminative reading of that case should have satisfied counsel that it not only does not sustain his view, but makes directly against it. We there dealt with a statutory provision the manifest purpose of which was to impose an absolute duty for the protection of persons, for the benefit, not of a class, but of the entire public considered as a composite of individuals; we took pains to distinguish those statutes which impose a duty for the benefit of the public considered as a composite of individuals from those statutes which impose a duty for the benefit of a particular class, and we held that in the one case a right of action may arise in favor of any person especially injured by a failure in such duty, while in the other a right of action could accrue only to a person of the contemplated class. The fencing statute invoked as a basis of liability in this case,...