Stones v. Chi., M. & St. P. Ry. Co.

• Court: United States State Supreme Court of Montana
• Citation: 59 Mont. 342
• Decision Date: 21 April 1921
• Docket Number: No. 4303.,4303.
• Parties: STONES v. CHICAGO, M. & ST. P. RY. CO.

59 Mont. 342

STONES
v.
CHICAGO, M. & ST. P. RY. CO.

No. 4303.

Supreme Court of Montana.

March 21, 1921.
Rehearing Denied April 21, 1921.

Appeal from District Court, Fergus County; H. Leonard Dekalb, Judge.

Action by Henry Stones against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

E. K. Cheadle and Rufus Hopkins, both of Lewistown, for appellant.

Marshall & Dousman, of Lewistown, for respondent.

HOLLOWAY, J.

This action was brought to recover damages for personal injuries received by plaintiff while in the course of his employment. The trial court granted a motion for a nonsuit, and rendered judgment dismissing the complaint. From that judgment this appeal is prosecuted.

It is difficult, if not impossible, to understand the theory of the pleader in drafting the complaint. It is alleged that plaintiff was employed by the railway company as a section hand under the direction and control of a foreman; that on the day of the accident the foreman, in violation of a rule of the company which required that the tools be removed from a hand car before the car was lifted to or from the track, negligently ordered plaintiff and his five coworkers to place a hand car, loaded with tools, upon the main track for the purpose of moving from one place of work to another; that the car with the tools upon it was too great a load for the number of men assigned to move it; that in attempting to execute the order, some of the men, other than plaintiff, negligently stumbled and fell, pushing the loaded car on and against plaintiff, causing the injuries of which he complains. It is further alleged that the tools being left upon the car increased the weight thereof by about 50 per cent., and rendered an accident more likely to occur; “that the company by its said foreman was guilty of carelessness, negligence, and a lack of prudence in ordering the said handcar to be moved from one track to another without removing the tools therefrom; and that in consequence of the said carelessness, negligence and lack of prudence of defendant the said accident occurred to this plaintiff.”

Upon the trial, in answer to an inquiry, and over the objection of defendant, plaintiff explained the occurrence as follows:

“Well, in carrying the car across it was too heavy, and when one of the fellows stumbled then every one fell. Well, by my being on the low side after I stepped up on the spur, the brake struck me here and knocked me...