Sprague v. N. Pac. Ry. Co.

• Decision Date: 21 February 1910
• Citation: 40 Mont. 481
• Parties: SPRAGUE v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

40 Mont. 481

SPRAGUE

v.NORTHERN PAC. RY. CO.

Supreme Court of Montana.

Feb. 21, 1910.

Appeal from District Court, Gallatin County; W. R. C. Stewart, Judge.

Action by Walter Sprague against the Northern Pacific Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

The complaint in this action alleges that on June 23, 1907, Lester Nelson and Charles Chappel, the agents and employés of the plaintiff, were driving from Chestnut to Bozeman in a buggy, and leading two horses belonging to the plaintiff; that at a point near Gordon Siding the public road crosses the track of the railway company; that from this point of crossing, for a distance of a quarter of a mile in an easterly direction, there were trees and brush along the railway track, and about 10 feet distant therefrom, and of such height as to obstruct the view of the track to a traveler passing along the public road. It is then alleged that, as Nelson and Chappel “reached said crossing, the defendant carelessly and negligently caused one of its locomotives, with a train of cars attached thereto, being westbound train No. 3 operated by said defendant, to approach said crossing, and then and there to pass rapidly over the track of the said railroad at said point, and negligently and carelessly omitted its duty, while approaching the said crossing, to give any signal by ringing the bell or sounding the steam whistle, within a distance of 80 rods from said crossing, or at all, by reason whereof the said Lester Nelson and the said Charles Chappel were unaware of the approach of the said train; that in consequence thereof the locomotive struck and instantly killed the said two horses belonging to plaintiff, which were being led by said Lester Nelson and Charles Chappel, to the damage of plaintiff in the sum of $600.” The complaint contains a second cause of action, couched in similar terms, for damages to the buggy and injury to one of the driving horses. It is alleged that the buggy and driving team belonged to W. J. Fransham, and that he assigned his claim for damages to the plaintiff before this action was commenced. The answer admits the injuries, but denies negligence on the part of the railway company, and pleads contributory negligence on the part of the plaintiff. The allegations of this special plea were put in issue by a reply. At the conclusion of plaintiff's evidence in chief the defendant moved the court for a directed verdict, but the motion was overruled. Defendant then declined to offer any evidence, the cause was submitted to the jury, a verdict returned in favor of the plaintiff, and from the judgment entered upon the verdict, and from an order denying it a new trial, the railway company appealed.

Wm. Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant. H. A. Bollinger and George Y. Patten, for respondent.

HOLLOWAY, J. (after stating the facts as above).

It is urged that the complaint does not state facts sufficient to constitute a cause of action, and that the evidence is not sufficient to sustain the verdict.

1. The attack upon the complaint proceeds upon the theory that the pleading contains allegations from which the plaintiff's negligence is plainly inferable, and, since it does not plead exculpation from such negligence, it is insufficient under the rule established in this state that, if the complaint shows that the act of the plaintiff was the proximate cause of the injury, it must set forth the facts showing that he was free from negligence. Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21;Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454, 104 Pac. 543. It is argued that the complaint discloses the peculiarly dangerous character of the crossing, by reason of the fact that a view of the railway track was obstructed from the public road until it reached within 10 feet of the crossing by the trees and brush, and this must be conceded. It is also insisted that the complaint shows that when Nelson and Chappel were 10 feet from the crossing, their view of the track was not obstructed, and therefore it is said their coming into collision with the train on the track must be attributed to their want of ordinary care; for, it is argued, had they stopped 10 feet from the track, they would have been in a place of safety, where they could have seen the approaching train, and could have avoided the accident. It is a legitimate inference to be drawn from the complaint that, for a space of 10 feet before the track was reached at the crossing, a view of the track from the public road was unobstructed; but we are not able to agree with counsel for appellant that the conclusion follows from this fact that the...