Robinson v. Helena Light & Ry. Co.

• Citation: 38 Mont. 222
• Court: United States State Supreme Court of Montana
• Decision Date: 06 February 1909
• Parties: ROBINSON v. HELENA LIGHT & RY. CO.

38 Mont. 222

ROBINSON
v.
HELENA LIGHT & RY. CO.

Supreme Court of Montana.

Feb. 6, 1909.

Appeal from District Court, Lewis & Clark County; J. M. Clements, Judge.

Action by Alvin Robinson, a minor, by W. H. Hirst, his guardian ad litem against the Helena Light & Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Carpenter, Day & Carpenter, Wm. Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

Clayberg & Horsky, for respondent.

BRANTLY, C. J.

This action was brought by the plaintiff, a minor, through a guardian ad litem, for damages for a personal injury alleged to have been suffered by him through the negligence of the defendant. Plaintiff had verdict and judgment. Defendant has appealed from the judgment and an order denying it a new trial.

The defendant owns and operates an electric railway constructed over and along certain streets in the city of Helena, and extending from the city to Ft. Harrison, situated several miles to the northwest, and is a common carrier of passengers. Between the city and Ft. Harrison there is a single line of track. At the latter place the track is laid in the form of a circular loop, returning into itself by means of a switch. To make the return trip to the city the cars are run around the loop and reach the main line again at the switch. A short distance beyond the switch, on the outside of the loop and at a point at which passengers bound to and from Ft. Harrison can most conveniently reach or leave the cars, the defendant has a small platform, 6x8 feet, for their accommodation, the roadbed at this point being considerably higher than the general level of the surrounding country. From the level of the roadbed up to the step of the car in use at the time the accident is alleged to have occurred was 21 inches. On the evening of April 15, 1906, the plaintiff, an enlisted soldier stationed at Ft. Harrison, wishing to board a car which was on its way around the loop and about to return to the city, attempted to do so as it was brought to a stop near the platform. The motorman in charge had allowed it to run too far, so that the front door was a few feet beyond the platform, and, in order to accommodate persons desiring to leave or enter, it was necessary to move it forward or backward, so that the front or rear door would be opposite the platform, because, the car being about 30 feet in length, the passengers could not otherwise use the platform. He undertook to back it up to the platform so that passengers could reach it from the front door. Just at that time, according to plaintiff's own statement, he had approached the car from the inside of the loop intending to enter it by the rear door. He had grasped the handle, and put one foot upon the step. While in the act of drawing up his other foot, the car suddenly moved, causing him to lose his hold and footing, and to fall under the wheels, which crushed his leg near the ankle, with the result that he was permanently injured.

The complaint charges: “(6) That in the operation, management, guidance, and control of said street car at the time and place hereinafter mentioned, the said defendants acted in a careless and negligent manner, in this, to wit: That on the 15th day of April, 1906, on the said loop portion, and at the terminus of said corporation's said track at Ft. Harrison, one of its cars had, on making the trip from the city to the said fort, come to a full stop to permit passengers to alight and board said car, which said car had come from said city, and was about to commence its return trip from said fort to said city; that said Robinson, desiring and intending to board said car, so at a full stop, as aforesaid, and become a passenger for hire thereon, proceeded to board said car, so at a full stop, as aforesaid, and put one foot upon the footboard at the side of the rear platform of said car, at the same time grasping the handle of the car with one of his hands, and while he thus had one foot on the footboard, as aforesaid, and in the act of drawing up the other, but before he had or was afforded the time or opportunity to, or could, draw up his other foot, and during all of which time, while said Robinson was proceeding to board said car, both the motorman and the conductor were standing on the opposite or front platform of said car, and did not look back at or observe said rear end of the car, the said car, through the negligence, carelessness, and recklessness of said defendants, suddenly and without warning to this plaintiff, and without affording him time or opportunity to complete the act of boarding said car, as aforesaid, started up with great force and violent speed, and that by reason of the defendants' said negligence, carelessness, and recklessness, said Robinson, without fault or negligence on his part, and while using due care and diligence, was caused to be violently thrown and precipitated with great force to the ground, and underneath one of the rear wheels of said car, and was thereby run over by said car, and both of the rear wheels of said car were derailed, the front wheels remaining on the track; and that, solely by reason of the said defendants' negligence, carelessness, and recklessness, both bones of said Robinson's right leg at the ankle joint were fractured, splintered, broken, and crushed. *** (7) And plaintiff further avers, upon his information and belief, that in so operating, running, and driving and managing said street car at the time and place aforesaid, and in causing the injuries so sustained by the said Robinson, as aforesaid, the said defendants acted in a willfully and recklessly negligent manner, and without any regard to their duty in the premises, and without any regard to the safety and rights of the said Robinson.”

The answer denies all the allegations charging negligence on the defendant's part, and alleges contributory negligence on the part of the plaintiff. At the opening of the trial the defendant objected to the introduction of evidence by plaintiff, on the ground that it appeared from the opening statement of his counsel to the jury that he was seeking to recover upon proof of a cause of action not alleged in the complaint, and of which the defendant had had no notice, in that counsel claimed that the injury occurred while the car was on its outward trip to Ft. Harrison and while it was backing up to the platform, whereas it is alleged in the complaint that the car had reached the platform, and was starting on its return trip. The motion was overruled. At the close of plaintiff's case defendant moved to strike out the testimony of plaintiff and another witness, the ground of the motion being the same as that of the motion to exclude the evidence at the close of counsel's statement. It also moved for a nonsuit, alleging several grounds therefor, all of which are included in the general statement: That there was a variance between the allegations in the complaint and the proof, and that from any point of view the evidence did not make out a prima facie case of negligence on the part of the defendant. These motions were denied. It is now contended that a new trial should have been granted because of error in these rulings, and also in others made during the trial upon questions of evidence and in instructing the jury. It is also contended that the evidence as a whole, apart from the material variance between the cause of action which is alleged, and that which plaintiff sought to prove, is insufficient to justify the verdict.

The defendant's bill of exceptions in support of the motion for a new trial was prepared, in conformity with the requirements of the statute, as a bill of exceptions. It was entitled and served as such. The acknowledgment of service by plaintiff's counsel designated it as such; and, after service, they offered and had incorporated in it certain amendments. In the preparation of the certificate of settlement, which is in the form of an order, counsel for defendant designated it as a “statement on motion for new trial.” Apparently the trial judge attached his signature without paying attention to this designation. Upon the filing of the record in this court counsel for plaintiff submitted a motion to strike from it the whole of the bill, on the ground that it had not been settled in conformity with the requirements of the statute. They also submitted a motion, designating the document as an alleged “statement on motion for new trial,” and asked to have it stricken out on the ground that the statute does not authorize a statement as the basis of a motion for a new trial. Pending these motions, counsel for defendant applied to the district court for an order to amend the certificate so as to make it designate the document as a “bill of exceptions,” and thus to conform to the fact. The court granted the order, and amended the certificate; and, upon written suggestion to this court, an order was made permitting the record on appeal to be amended accordingly, subject, however, to lawful objection by respondent upon the hearing of the cause on the merits. Disposition of the motions was deferred until that time. From the order made by the district court permitting the amendment, plaintiff appealed. By agreement of counsel this appeal has been submitted for decision, together with the principal appeals.

Inasmuch as we may not consider the questions sought to be presented by the principal appeals unless the bill of exceptions is properly in the record, for they all arise out of proceedings which must have been brought into it by a bill of exceptions, we shall take up first the questions presented by the motions and the separate appeal. Is the certificate so defective that the document designated as a “bill of exceptions,” must be stricken out or disregarded? And, if so, had the district court, pending the appeal from the order, the power to amend it so as to make it conform to the requirements of the statute? Prior to the...