Stevens v. Hines
| Citation | 206 P. 441,63 Mont. 94 |
| Decision Date | 05 April 1922 |
| Docket Number | 4687. |
| Parties | STEVENS v. HINES, DIRECTOR GENERAL, ET AL. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.
Action by Lon H. Stevens against Walker D. Hines, Director General of Railroads, and the Chicago, Milwaukee & St. Paul Railway Company. From judgment for plaintiff and from order denying their motion for a new trial, the defendants appeal. Affirmed as to railroad, and reversed and remanded as to the Director General.
Fred J Furman, of Butte, Leo J. Hanley, of Portland, Or., and Murphy & Whitlock, of Missoula, for appellants.
Wheeler & Baldwin, of Butte, for respondent.
This action was brought by plaintiff to recover damages for injuries alleged to have been sustained by him on account of alleged negligent acts of the defendants. The complaint alleges:
The corporate existence of the defendant railway company; that as a common carrier by railroad it was engaged in commerce between several of the states; and that the defendant Hines was the Director General of the United States Railway Administration, having supervision of interstate railroads including the system of the defendant company; that the plaintiff was employed by the defendant company in such commerce as section foreman, and "that as such foreman he had the direction of the work of laying and repairing the track of certain portions of the road of said company, and on the 27th day of June, 1917, he had working under his direction several men, and on or about the said 27th day of June, 1917, while he and other employees were engaged in repairing the track of said company and in laying rails, * * * and while they were lifting said steel rails, plaintiff gave orders to the other employees to lift up on said rail but, notwithstanding said orders so given, the other employees working with plaintiff negligently and carelessly permitted and allowed the said rails to drop and strike an iron bar which plaintiff then and there was using, causing said iron bar to strike plaintiff in and about the face, head, and shoulder, breaking, crushing, and bruising the bones in and about his shoulder and bruising his face and head;" and that by reason thereof plaintiff was damaged in the sum of $20,000.
The defendants first appeared specially and moved the court to quash the service of summons, which motions were overruled. Thereupon they filed a joint answer, denying generally the averments of the complaint, except the corporate capacity of defendant company, that it was engaged in interstate transportation, and the appointment of Hines as Director General of Railroads. The answer also contains separate and affirmative defenses of contributory negligence and assumption of risk by plaintiff, which special pleas were put in issue by plaintiff's reply. The case was tried before the court and a jury on December 23, 1919.
Plaintiff was the only witness who testified as to the manner in which the accident occurred. From his statement it appears that at the time in question he was employed by the defendant railway company as section foreman in its yards at Butte, and was engaged in replacing certain steel rails on a passing track with rails of a heavier weight, and had five men working with him under his direction; two rails, each 33 feet long and weighing approximately 900 pounds each, had been fastened together by means of an angle bar, and placed on the ends of the ties alongside the track in immediate proximity to the place where they were to be used, and all that remained to be done was to turn the two rails over, line them up with the other rails, and spike them into position. Before beginning the actual work of replacement, the plaintiff ascertained that he had 30 minutes before the coming of a train in which to do the work, and thereupon he proceeded with his task in the following way: There were holes in the rails at each end, and also at the middle where they had been bolted together; into each of these three groups of holes there was inserted the small end of a "lining bar," a steel bar about six feet long. Plaintiff with another man was handling the bar at one end of the rails, two men were at the bar in the middle, and the other two men at the bar on the opposite end from the plaintiff. While in these positions, the men, with the plaintiff assisting, sought to turn the rails over by lifting up on the lining bars; they had lifted until all the bars had passed beyond the perpendicular, but were unable to roll the rails further by reason of the fact that the angle bar joining the two rails caught on some obstruction, whereupon the plaintiff called to the men two or three times, "Lift up," but the men, instead of lifting up, let go of the lining bars which they were handling, whereupon the rails rolled back, carrying with them the bar which plaintiff was handling, and the same struck him on the head and shoulder, causing the injuries complained of. The plaintiff was then a man 57 years of age, had spent about 25 years in similar employment. The work being done at the time of the accident was performed in the customary manner, with ample time and sufficient men to do it.
As to the extent of the plaintiff's injuries the testimony showed that, prior to the happening of the accident, he was a strong, healthy man, and never suffered pain when working or lifting, but that subsequent thereto he did suffer pain when working or lifting; that he was first treated for his injuries by Dr. Maginn in Butte, after which he went to a hospital in Deer Lodge, where he was operated on twice, being confined in the hospital 10 days on the first occasion, and 9 days on the second; that at the time of the trial, which was approximately 2 1/2 years after the accident, the fracture to the collar bone had not yet been successfully reduced, and on account of his age it was questionable whether the two ends would ever unite; that the ends of the bone overlapped, and when he moved his arm one end of the bone would slide behind the other, causing irritation and pain. It was further shown that, although plaintiff was obliged to carry his arm in a sling for a period of seven months after the accident, he continued in his employment all the time and that his wages had been increased from $85 or $90 to $115 per month.
At the close of the testimony on the part of the plaintiff, defendants moved for a nonsuit upon three grounds: (1) That there was a fatal variance between the allegation of negligence and the proof of the same; (2) that the evidence was not sufficient to sustain a charge of negligence on the part of the defendants; and (3) that it appeared from all the evidence that the plaintiff was injured as a result of risks which he assumed in his contract of employment with the defendants. This motion was overruled. Thereupon the defendants rested their case, without introducing any testimony, and moved the court to direct the jury to return a verdict in their favor for the same reasons set forth in their motion for nonsuit, which motion was denied.
The jury returned a verdict in favor of plaintiff and against both defendants, upon which judgment was entered. From this judgment and an order denying defendants' motions for a new trial these appeals are prosecuted.
The defendants' first assignment of error has to do with the refusal of the court to quash the service of summons upon the defendant railway company. This motion was based "upon the records, files, minutes of the court, and the affidavits of E. A. Tamm and Fred J. Furman." This matter cannot be considered, for the reason that the order of the court refusing to quash the service of summons is not embraced...
To continue reading
Request your trial