Riley v. Northern P. Ry. Co.
| Decision Date | 17 February 1908 |
| Parties | RILEY v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; C. H. Loud, Judge.
Action by Esther L. Riley, as administratrix, against the Northern Pacific Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.
Wallace & Donnelly, for appellant.
Geo. W Farr and Fred H. Hathhorn, for respondent.
Between 2 and 3 o'clock on the morning of July 18, 1905, two men named Reuben A. Riley and George Cresap, were struck and instantly killed by a switch engine of the Northern Pacific Railway Company on the Twenty-Seventh street crossing of the tracks of that company in Billings, Mont. This action was begun by the plaintiff, the widow and administratrix of the estate of Reuben A. Riley, to recover damages for his death on the ground that it was due to the negligence of the railway company and its employés. Foster L. Skillman, the engineer in charge of the switch engine, was joined with the railway company as defendant; but no verdict was returned or judgment entered against him. The railway company appeals from a judgment against it, founded upon a verdict for $12,600, and from an order denying its motion for a new trial.
As is well said in the brief of counsel for the appellant, the negligence relied on by the plaintiff is set forth in the complaint with a degree of fullness seldom found in cases of this character. The tracks of the defendant company extend east and west through the city of Billings. The streets immediately north and south, and running parallel with them, are, respectively, Montana avenue and Minnesota avenue. A number of streets cross the tracks at right angles from north to south, among them Twenty-Seventh street. This last-named street is the first street east of the depot of the defendant, and is one of the streets most used in passing to and fro between Montana and Minnesota avenues. At the time of the accident the defendant had seven tracks constructed and in use across Twenty-Seventh street. Starting with the most northerly track, and numbering them as they lay, track No. 2, or the first track south of the most northerly track, was the main line, tracks Nos. 1, 3, 4, 5, 6, and 7 being sidings. The distance from the south rail of the main line to the north rail of track No. 3 was 10.4 feet. Sidewalks 12 feet wide extend north and south along each side of Twenty-Seventh street. The street is 80 feet in width, including the sidewalks, and 56 feet in width between the sidewalks. The planking of the walk is practically level with the rails of the track. Between tracks 1 and 2, and a little to the east of the east sidewalk, there is a watchtower from which crossing gates are raised by a man stationed there. A watchman was kept in the tower from 7 a. m. until midnight. From about 9 or 10 o'clock in the evening of July 17th until shortly before he was killed the deceased was at the Topic Saloon or Theater on Minnesota avenue, about 250 feet east of the east walk of Twenty-Seventh street, and was expecting to meet his wife, the plaintiff, who was coming to Billings from Miles City on train No. 3, due to arrive in Billings at 2:05 a. m., and which did arrive at 2:23 a. m. All that is known of the manner in which deceased was killed is what was told on the stand by plaintiff's witness Mueller. The witnesses Hayden and Rex were with Mueller at the time, but neither would believe that a man had been struck when Mueller affirmed that he had observed the fact. The testimony of Mueller was, in substance, as follows: Just before the accident Mueller, Hayden, and Rex were together on Minnesota avenue, west of Twenty-Seventh street. Hayden was to leave for the west on train No. 3, and Mueller and Rex were going to see him off. They heard the train whistle, and the three men came together to the southwest corner of Minnesota avenue and Twenty-Seventh street, and crossed diagonally to the northeast corner, striking the east sidewalk of Twenty-Seventh street near the south corner of a woolhouse there situated, and then walking north on the east walk of Twenty-Seventh street. As they crossed to the woolhouse corner, Mueller noticed two men right ahead. The crossing gates were up, and the witness saw no one in the tower. When he first saw the two men, they may have been on track 3 or track 4, and were going north on the east sidewalk. By the time witness had walked probably 50 feet on the east sidewalk the two men ahead stopped. The witness did not know who they were or why they stopped, though the passenger train was going across Twenty-Seventh street just then, and they stopped on the south side of the passenger train. He estimated that the passenger train, which was on the main line going west, was running fully 20 miles an hour until it struck the Twenty-Seventh street crossing, and was going very fast across the street. As this train No. 3 was crossing the street he noticed a switch engine backing up from the west side of Twenty-Seventh street on track No. 3, the first track south of the main line. It had been standing on the west side of the street, and when he saw it start to back up train No. 3 was in motion across Twenty-Seventh street. The train and the engine passed at the same time, train No. 3 moving west, and the switch engine backing east across that street. When the switch engine crossed the east walk, the witness and his two friends stopped to let it pass. He thought that he and his friends were then on or just north of track No. 4, within 6 or 8 feet of the switch engine. Just as he stopped he saw the men he had noticed in front of him. One of them stepped back, and witness saw him fall. As the passenger train was coming in the witness saw a cloud of dust roll up beneath the train. He could not say to what extent it rolled up, any more than that he saw the dust. It was sufficient so that he could see it from where he stood. He could not say for sure whether the man who, as he had said, stepped back, had really stepped back, or whether he had faced the other way and stepped forward, but, whichever it was, the movement was made just as the passenger train was alongside where this man stood. The witness thought the man was standing between track No. 2 and track No. 3, on which the switch engine was moving when he made this backward movement. On seeing the man fall, witness said to his friends: "There was a man run over." After the switch engine had passed they saw a corpse lying 20 feet away. The witness went to send in an alarm to the police station, and his friends ran east to notify the switching crew.
A little east of the point where lay the first body a second body was found. The bodies were those of Reuben A. Riley and George Cresap. The foregoing is a summary of Mueller's testimony, substantially as set forth in the brief of appellant.
Now as to the pleadings. The plaintiff charged in her complaint that the negligence of the defendant consisted in the following: (1) Failure to lower the crossing gates before the deceased started across the tracks; (2) excessive speed of train No. 3 in crossing Twenty-Seventh street; (3) excessive speed of the switch engine in backing across Twenty-Seventh street; (4) failure of the employés in charge of the switch engine to give any warning, or ring a bell, or blow a whistle, in backing across the street; (5) negligence in moving the switch engine across the street while the passenger train was coming in to the depot; (6) failure to have a switchman at the rear end of the switch engine while it was backing across the street; (7) failure to have any light or signal at the rear end of the switch engine to warn persons of its approach; (8) failure of the engineer and fireman of the switch engine to keep a lookout for persons on the street while they were backing across it; and (9) failure to have a flagman at the crossing to warn people of the approach of trains, by waving a red flag, as required by the city ordinances. The defendant railway company denied negligence on its part, or that of its servants, and alleged that the death of Riley was caused by his contributing fault and carelessness.
The first error complained of is the refusal of the court to direct a verdict for the defendant at the close of plaintiff's case. We are of opinion that the court was right in refusing to grant this motion. The specifications of negligence set forth in the complaint, numbered from 3 to 9, comprehend, in substance, the proposition that the railroad company was negligent in not properly guarding this crossing while the switch engine was passing over it. Whether the company was or was not negligent in this regard was a proper question to be submitted to the jury under the testimony of Mueller, as herein recited. We think the question of contributory negligence on the part of the deceased was also properly submitted. We cannot say that different minds might not properly reach different conclusions relative to both of these questions under the evidence.
The second contention is that the court erred in giving instruction No. 1 to the jury. This instruction is very long and it is unnecessary to repeat it here. It is, in effect, a statement of the matters set forth in plaintiff's complaint, including the various reasons assigned by the plaintiff as a basis for her averment that the defendant was negligent. This instruction embodies the language of the complaint almost literally, and, regarding it as merely a statement of the issues made by the pleadings, we find no error in it, but think the jury must have understood that it was simply a statement of what the plaintiff claimed and what the defendant relied upon as a defense. In this connection...
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