Nord v. Bos. 7 M. Consol. Copper 7 Silver Min. Co.

• Citation: 30 Mont. 48
• Case Date: March 03, 1904
• Court: United States State Supreme Court of Montana

30 Mont. 48

NORD
v.
BOSTON 7 M. CONSOLIDATED COPPER 7 SILVER MIN. CO.

Supreme Court of Montana.

March 3, 1904.

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by Nels Nord against the Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

A. C. Gormley and Word & Word, for appellant.

Ransom Cooper and Wm. T. Pigott, for respondent.

CLAYBERG, C. C.

Appeal from a judgment of nonsuit. The action was for damages resulting from a personal injury caused by the alleged negligence of defendant in not using ordinary care to provide and maintain a reasonably safe place for plaintiff to work.

It appears from the record that defendant had constructed six ore bins, in a continuous line, for the purpose of receiving ore from loaded freight cars. Only three of these bins were at the time of the accident in actual use, and these were at the westerly end of the line. The next bin to those in actual use was full of ore, which had been placed therein prior to plaintiff's employment. Bins 5 and 6 (those farthest to the east) were empty, and about 22 feet in depth. Lengthwise, over this line of bins, two railway tracks had been constructed and maintained, over which cars containing ore were moved from the east to west, for the purpose of unloading in bins 1, 2, and 3. Two board walks were also constructed parallel to the railway tracks over all the bins-one about 2 1/2 feet wide, between the two railway tracks, and another on the north side of the tracks. These walks seem to have been constructed for the accommodation of the men working there, as a means of passage. It was the duty of the men who unloaded the cars in bins 1, 2, and 3 to bring the loaded cars from the east, where they were stored, to the place of unloading. For this purpose three men were usually employed; one to attend to the brake on the loaded car, one to uncouple the car from the others, and one to start the car with a pinch bar, if necessary. Bins 5 and 6 were not covered between the tracks; bin 4 was full of ore; the nearest light was about 120 feet away from the place where the accident occurred, being suspended over the center of bin 3. Plaintiff was hired to unload ore, and do such other work connected therewith as was required of men in like employment. The injury complained of occurred about 2 o'clock a.m. Plaintiff had worked only 10 shifts prior to that time, and had never before uncoupled cars. One Nelson, the “straw boss” who had charge of the men working on the shift, told plaintiff and one Morris to go with him after a loaded car. When they reached the car, Nelson mounted it on the end nearest to bin No. 3 to attend to the brake. Plaintiff, under Nelson's directions, passed along the car to uncouple it at the other end. He says he placed his left foot on the board walk between the tracks, his right foot on the timber rail or on the rail of the track, and reached over to uncouple the car, and fell in the bin, breaking his back. There was a little light between the tracks, but it was very dark between the cars. At the conclusion of plaintiff's case defendant made a motion for nonsuit, which was sustained, and judgment entered for defendant. From the judgment this appeal is prosecuted.

1. Counsel for respondent first objects to the sufficiency of the third specification of error in appellant's brief, and insists, as the motion for nonsuit was based upon the proposition that the evidence given on the trial in behalf of plaintiff conclusively showed that plaintiff was guilty of contributory negligence, or had assumed the risk of the employment, as well as upon the proposition that plaintiff's proof did not tend to support the allegations of the complaint, that appellant could not be heard to attack the judgment of nonsuit on the ground that the testimony did not show contributory negligence or assumption of risk. This specification is as follows: “It was error in the court to hold that the evidence was insufficient to go to the jury as tending to support the allegations of plaintiff's complaint. It was accordingly error to sustain the defendant's motion for nonsuit.” Respondent's objection is purely technical, and should only be sustained if no other conclusion can be reached. The error complained of is clearly as to the action of the court below in granting a nonsuit. Appellant's reasons why he claims the decision was error are immaterial, and are not required to be set forth by the rules of this court. They are therefore mere surplus age, and should not be considered. The provisions relied on are found in rule 10, subd. 3 (57 Pac. vii), which, among other things, provides that the appellant's brief shall contain “a specification of errors relied upon, which shall be numbered and shall set out separately and particularly each error intended to be urged.” There is no requirement that the specification shall set out appellant's reasons why he claims the decision is error. That is purely a matter of argument. It is sufficient under the provisions of this rule, therefore, to simply specify that the court below “committed error in granting the motion for nonsuit.” The rules of the court are not established for the purpose of befogging attorneys, and a reasonable interpretation of them, therefore, should obtain. The purpose of this subdivision of rule 10, above cited, is to require attorneys to specify and point out the errors of which they complain, and not to give their reasons why they complain it is error, and, if more than one error is charged, to number them and set them out separately and particularly. Counsel for appellant at the hearing requested permission to amend specification of error No. 3, which was objected to by respondent on the ground that the specification in the brief should correspond with the specification of error in the bill of exceptions, and that the bill of exceptions could not be amended, ergo the brief could not. It seems...