Palmer v. Great Northern Ry. Co.

• Decision Date: 28 June 1946
• Docket Number: 8563.
• Parties: PALMER v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

170 P.2d 768

119 Mont. 68

PALMER v. GREAT NORTHERN RY. CO.

No. 8563.

Supreme Court of Montana

June 28, 1946

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by Harry M. Palmer against the Great Northern Railway Company for personal injuries sustained by plaintiff while employed by defendant. Judgment for plaintiff, and defendant appeals.

Affirmed.

Weir, Clift & Bennett and Newell Gough, all of Helena, for appellant.

E. J Stromnes and Swanborg & Swanberg, all of Great Falls, and Lester H. Loble and Melvin E. Magnuson, both of Helena, for respondent.

GUY C. DERRY, District Judge (sitting in place of Chief Justice LINDQUIST).

Defendant has appealed from a judgment of the district court of Cascade county.

The cause was tried in the district court on pleadings which were amended to meet the proof in some particulars and plaintiff's action was based upon the theory, as indicated by his pleadings and proof, that plaintiff was injured as result of being furnished defective and improper safety shoes (same being contended to be appliances or equipment under the State Railroad Employers' Liability Act) while employed by the defendant in its shops at Great Falls, Montana. Plaintiff's right to recover is based upon his position that he, as an applicant for employment by the defendant, was given a thorough physical examination by a physician in the employ of defendant at St. Paul, Minnesota a few months before the injury complained of, which examination was made as a condition of his employment, and that at the time of such examination he then had, unknown to himself, generalized arthritis, an impaired circulation in the extremities and bilateral hammer toes; that the defendant was thereby made aware of his physical condition, in particular reference to his feet; that notwithstanding his condition the defendant, after plaintiff's employment first as a machinist and later as a sweeper or laborer required him to wear so-called safety shoes; that the condition of plaintiff's feet, which was known to the defendant or should have been known to it, precluded the use of safety shoes or at least required shoes of the particular size or condition that would not cause injury to his feet, but that notwithstanding that fact the defendant furnished defective and improper shoes which did cause injury to his feet which later resulted in the amputation of one of his legs.

It is the contention of the plaintiff that such result was the direct consequence of the violation of the duty of the defendant to furnish proper and safe shoes. Defendant took the position that the shoes were obtained from the defendant by the plaintiff and fitted by himself and that if the same were defective or so tight as to cause injury to his feet, that fact should have been discovered and acted upon by the plaintiff, and his failure to so act in order to avoid the resulting injuries established contributory negligence as a matter of law. It was also contended by defendant that the plaintiff had assumed the risk of his employment and that, under the facts established by the evidence, he could not recover. It should be noted that the defense of assumption of risk was not pleaded.

Shortly before the trial the defendant had asked leave to file a second, amended answer whereby it sought to amend its answer by adding a further defense of assumption of risk by the plaintiff. The motion was denied by the district court, but when the case was submitted to the jury they were instructed upon the rule applicable to the defense of contributory negligence and assumption of risk, based upon the belief which was apparently entertained by the trial court that such defenses were available to the defendant and that neither the State Railroad Employers' Liability Act, Chapter 29, Laws of 1911, Rev.Codes 1935, § 6605 et seq., nor the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., were applicable to the case. No objections to the giving of such instructions were made by plaintiff.

There were 42 assignments of error submitted by the defendant and four cross-assignments of error by the plaintiff. In order to pass on these assignments of error, it is necessary to decide first whether the nature of plaintiff's employment brings the case within the State Railroad Employers' Liability Act. It may be conceded that there was neither pleading nor proof that would bring the case under the Federal Employers' Liability Act. The state Act was passed by the legislature for the protection of employees from injuries incident to employment on railroads and was patterned after the federal Act. It creates a different basis for liability then that afforded under the common law. Section 6605, Revised Codes 1935, reads as follows: 'Every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while he is employed by such person or corporation so operating any such railroad, or, in case of the death of such employee, instantaneously or otherwise, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents, and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such person or corporation so operating such railroad, in or about the handling, movement, or operation of any train, engine, or car, on or over such railroad, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

Sections 6606 and 6607, Revised Codes, are part of the same Act. 'In all actions hereafter brought against any such person or corporation so operating such railroad, under or by virtue of any of the provisions of this act, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such person or corporation, so operating such railroad, of any statute enacted for the safety of employees contributed to the injury or death of such employee.' Section 6606.

Section 6607, Revised Codes, provides that the employee of a railroad shall not be deemed to have assumed any risk incident to his employment when such risk arises by reason of negligence of his employer or any person in the service of such employer.

The evidence shows that plaintiff was employed in the shops of the Great Northern Railroad Company at Great Falls where engines were taken down and repaired and generally overhauled. The work of plaintiff was on or about these engines while working as a machinist and later, while working as a sweeper or laborer, he was required to do the usual work required of a laborer in and about the shops. It can be fairly inferred from the evidence that the work plaintiff was doing had a direct relation to keeping the engines in operation and in the general maintenance of the railroad system.

This court, speaking through Mr. Chief Justice Brantly, established a measuring stick for determining the question of what type of employment brings the employee within the operations of the Act, in the case of Regan v. Montana Logging Company, 53 Mont. 153, 162 P. 388, 390. 'Was the defendant, at the time the plaintiff was injured, engaged in the operation of the railroad, within the meaning of the statute? The liability declared by it attaches to the owner operating a railroad, in favor of an employé injured through the negligence of any officer, agent, or employé of the owner 'in or about the handling, movement or operation of any train, engine or car, on or over any such railroad, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, * * * or other equipment.' If we bear in mind that the purposes of the legislation is, as we have said, to protect the employés from injuries incident to the employment, the conclusion seems inevitable that the language quoted is broad enough to include an injury to one employed in any capacity by another employé in the same or a different capacity, in the accomplishment of any kind of service without which the complex process of operation cannot go on. Trains cannot be moved unless the roadbed, rolling stock, and other appliances are kept in repair. Cars must be loaded nd unloaded; otherwise transportation cannot go on. Other tasks of similar nature must be done, the doing of which involves the risk of dangers peculiarly incident to railroads because of the character of the services required and the instrumentalities employed.'

The Chief Justice discussed the holdings of different courts as to the various types of work which had been held to be covered by such a statute as ours, and then gives his conclusion as follows: 'These are some of the instances which are held to be included within the scope of such legislation, and support the view expressed above that any part of the work connected with the railroad which necessarily and directly contributes to the operation of it, or the handling or movement of any train, engine, or car on or over it, comes within its scope.'

Again this further pertinent observation appears in the Regan case 'The legislation is remedial in its nature, and its operation ought not to be limited by narrow construction. Doubtless cases will...