Pierce v. Great Falls & C. Ry. Co.

• Decision Date: 17 April 1899
• Citation: 56 P. 867,22 Mont. 445
• Parties: PIERCE v. GREAT FALLS & C. RY. CO.
• Court: Montana Supreme Court

56 P. 867

22 Mont. 445

PIERCE v. GREAT FALLS & C. RY. CO.

Supreme Court of Montana

April 17, 1899

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Mary Pierce against the Great Falls & Canada Railway Company. From a judgment for defendant, and an order refusing a new trial, plaintiff appeals. Affirmed.

J. C Huntoon and J. A. Largent, for appellant.

Thos E. Brady, for respondent.

PER CURIAM.

Having suffered personal injuries by the derailment of a car in which, as a passenger, she was being carried by the Great Falls & Canada Railway Company, Mary Pierce brought this action to recover $20,000 as damages therefor. The complaint contains the following allegations of negligence: "That while said plaintiff was such passenger on said car, at or near a station or place known as 'Sweet Grass,' in Teton county, Montana, on the said defendant's railway in the said state of Montana, the said car was derailed, thrown from the track of the said railway, overturned, and burned that said defendant wholly neglected to furnish a good and safe and properly equipped car in which to convey plaintiff but had on said train a passenger coach that was improperly equipped, and had in charge of and on said train of cars, and in charge of the locomotive attached thereto, employés that were unfit and incompetent to discharge their duties as such emploýs, and did not furnish a proper and safe roadbed, ties rails, and track, and did not inspect the said train of cars and did not inspect, or keep in a good state of repair, the roadbed of the said railroad, but failed to discharge their duties in that behalf, all of which acts of negligence and omissions as herein alleged were well known to the defendant company and its employés in charge of said train and in charge of said roadbed and track, but were not known to this plaintiff. And while said plaintiff was such passenger on said car, being conveyed from the town of Lethbridge, Canada, to the city of Great Falls, Montana, near a station at the place known as 'Sweet Grass,' in Teton county, state of Montana, on said defendant's said railway in said state of Montana, the said car, by reason of the said negligence of the company and its employés as aforesaid, was derailed, thrown from the track of the said railway, overturned, and burned, which said derailment, overturning, and burning were caused by the carelessness and negligence of the said defendant and its servants," whereby the plaintiff was injured. The answer contains denials of the foregoing averments of the complaint with respect to negligence, and alleges that the derailment and burning of the car were caused by the act of God, and that it was beyond the power of human agency to prevent said accident; that at the time of the accident a great and unusual windstorm was raging, which blew the car from the track; and that it was beyond the power of defendant to prevent the accident. The reply denies that at the time of the accident, or at any other time, the car was derailed by the windstorm, or otherwise or in any other way than as alleged in the complaint, or that the derailment or burning was on account of the act of God, or of any other reason except as alleged in the complaint, and states that the derailment and burning were caused by reason of the defective condition of the roadbed, rails, ties, track, cars, locomotive, and the alleged negligence and failure to properly inspect and equip, as alleged in the complaint, and by the recklessness, negligence, and incompetency of the defendant and its employés, as alleged in the complaint. The plaintiff further denies that there was a great or unusual, or any, windstorm raging, and alleges that the derailment and destruction were due wholly to the recklessness, inefficiency, and negligence of said employés of the defendant, and failure and neglect of defendant, as alleged in the complaint. The jury returned a general verdict for defendant, and also found specially that the car was overturned by the wind...