Wastl v. Montana Union Ry. Co.

• Decision Date: 14 May 1900
• Citation: 61 P. 9,24 Mont. 159
• Parties: WASTL v. MONTANA UNION RY. CO.
• Court: Montana Supreme Court

61 P. 9

24 Mont. 159

WASTL v. MONTANA UNION RY. CO.

Supreme Court of Montana

May 14, 1900

Hunt J., dissenting.

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by Peter Wastl against the Montana Union Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. A judgment for the plaintiff was reversed on a former appeal, and the cause was remanded for a new trial. 17 Mont. 213, 42 P. 772. Before the second trial in the district court the complaint was amended so as to make more specific the allegations of negligence on the part of defendant. It is alleged by plaintiff that on April 15, 1889, the defendant, a corporation organized under the laws of Montana, was engaged in operating its railroad in Silverbow county, using in connection therewith, at the city of Butte, its depot tracks, switches, switch yard, engines, and other necessary appliances; that the plaintiff was in its employ as a laborer, his ordinary duties requiring him to wipe and coal engines, and to perform such other tasks as might be directed by the boss in the roundhouse or the hostler in the yard that it was also plaintiff's duty, in the absence of the regular helper, and when ordered by the hostler, to aid the hostler in the movement of engines about the yard by opening and closing the necessary switches; that plaintiff had no experience whatever in turning switches,-a fact well known to defendant,-and that defendant had wholly failed to instruct him how to perform this task by the promulgation of suitable rules, or by other means, so that he might avoid the danger incident thereto; that about 9 o'clock p. m. on April 15 1889, the regular helper being absent, the hostler, as the superior of plaintiff, directed the plaintiff to get upon an engine which was standing on a side track in the yard, and assist in taking the engine to the roundhouse by getting off and turning the switches whenever the engine stopped; that the night was dark; that the yard was not lighted; that the plaintiff was not permitted to take a light; that the engine went west to a point near the first switch, where it stopped; that thereupon the plaintiff, getting off, went eastward, walking between the rails, to turn the switch, and, giving his attention entirely to his task, was stooping down in the darkness, looking for the switch lever; that while he was in this position the hostler, without giving any signal with the bell or whistle, or by other means, reversed the engine, and ran it back towards the east upon and over the plaintiff, inflicting upon him serious and permanent injuries, with the result that he has since that time been unable to perform manual labor and to earn a living for himself and family; and that the said injuries were wholly without his fault. The answer denies all the material allegations of the complaint, alleges that the injuries of plaintiff were due to his own negligence, and sets up a special affirmative defense that, in so far as the plaintiff seeks to recover of defendant upon the ground that defendant had failed to instruct him how to turn switches, and to promulgate suitable rules to guide him in the performance of this duty, the plaintiff's cause of action is barred by the provisions of section 47 of the Code of Civil Procedure of the Complied Statutes. The jury found for the plaintiff, assessing his damages at $10,000, and judgment was entered for that amount. From this judgment, and an order denying a new trial, defendant prosecutes this appeal.

Hunt J., dissenting.

John F. Forbis, G. B. Winston, and Wm. Wallace, Jr., for appellant.

John A. Shelton, T. J. Walsh, and J. M. Hinkle, for respondent.

BRANTLY, C.J. (after stating the facts).

The appellant asks for a reversal of the judgment and order upon the following grounds: That the trial court erred in refusing to direct a nonsuit, that the evidence is insufficient to justify the verdict, that the trial court admitted improper evidence, that it erred in submitting certain instructions to the jury and in refusing to submit others requested, and that the verdict is excessive.

1. This suit was brought under section 697, div. 5, Comp. St. 1887. This section was construed and applied in Criswell v. Railway Co., 17 Mont. 189, 42 P. 767. The judgment in that case was afterwards reversed on rehearing upon a constitutional question which was not urged on the first hearing (18 Mont. 167, 44 P. 525, 33 L. R. A. 554), but the opinion of the court there expressed as to the proper interpretation of this section was in no wise changed or modified. As already noted in the foregoing statement, a judgment for the plaintiff in this cause was reversed upon a former appeal, and a new trial granted. The contention is now made by counsel for respondent that all the questions presented upon this appeal, except the one raised by the assignment last mentioned and some arising upon the correctness of particular instructions, presently to be noted, were involved in the former appeal, and, therefore, that the conclusions reached by the court at that time are the law of the case, and binding upon us on this appeal. Counsel even go so far as to insist that this principle extends to all matters that the court should, or might have, properly considered and determined on the former appeal, whether an opinion was expressed thereon or not. As we understand it, however, this court has never gone further in the application of the rule than to hold that it is bound by a former decision upon all points necessary to a determination of the cause as it was then presented. On matters not essential, or questions incidental or not considered, the court is not conclusively bound upon the second appeal. In Palmer v. Murray, 8 Mont. 174, 19 P. 553, referring to a former appeal in the same case (6 Mont. 125, 9 P. 896), the territorial supreme court said: "That decision has now become the law of the case in all of its stages, and cannot be departed from, so far as the questions of law or fact are concerned which were therein presented for review or decision." The rule has been repeatedly invoked and applied in this jurisdiction, both before and since the decision in the case cited. Creighton v. Hershfield, 2 Mont. 170; Daniels v. Insurance Co., Id. 500; Kelley v. Cable Co., 8 Mont. 440, 20 P. 669; Davenport v. Kleinschmidt, 8 Mont. 467, 20 P. 823; Priest v. Eide, 19 Mont. 53, 47 P. 206, 958; Maddox v. Teague, 18 Mont. 512, 46 P. 535; Murray v. Polglase, 23 Mont. 401, 59 P. 439. But, though the rule may be invoked even in support of an erroneous ruling upon the former appeal (Davenport v. Kleinschmidt, supra), its application will be strictly limited to the points necessary to the determination of the cause. It cannot be successfully invoked to estop the appellate court in a case where a different state of facts is shown, or questions of law are presented a decision of which was not necessary or germane to the former opinion. Priest v. Eide, supra; Klauber v. Car Co., 98 Cal. 105, 32 P. 876; Barney v. Railroad Co., 117 U.S. 228, 6 S.Ct. 654, 29 L.Ed. 858. So that, while we recognize the rule as well established in this jurisdiction, we are not disposed to extend it beyond the exigencies which demand its application.

Looking into the record as presented upon the former appeal, and to what was said by this court in that decision, we find that a majority of the justices agreed to a reversal of the case upon two paragraphs of the charge of the trial court designated as instructions 7 and 15. Mr. Justice De Witt was disqualified, and took no part in the decision. The chief justice wrote the opinion, but Mr. Justice Hunt concurred therein specially, and upon the sole ground that the charge was erroneous in the particulars mentioned. From an examination of these parts of the charge it appears that the trial court misstated the rule of law by which the jury should be guided in determining the preponderance of the evidence, and invaded the province of the jury by calling attention to certain of defendant's witnesses by name, and, to this extent, improperly commenting on the weight of the evidence. The sufficiency of the evidence to withstand a motion for nonsuit or to sustain the verdict cannot be held to have been within the purview of the concurring opinion, and was, therefore, a matter upon which no opinion was expressed. This fact, however, is to be noted: The case of Criswell v. Railway Co., supra, was under advisement by the court during the time this case was considered. As stated already, it involved the construction and application of section 697, div. 5, of the Compiled Statutes of 1887,--the fundamental question involved in this case, and presented by the record in the former appeal. The two opinions were handed down the same day. As the decision in the former was by all the justices, and as the two cases may be looked upon as one, in so far as this section of the statute was involved, a construction of the statute being necessary to this case also, the decision in the former case on this point may fairly be treated as the law of this case. In fact, the construction given to the statute in the Criswell Case was referred to and adopted as applicable to the present case, the court deeming it unnecessary to repeat the discussion and decision in the Criswell Case. Therefore, though it subsequently appeared that a construction of the statute as applied to the facts in the Criswell Case was entirely unnecessary, yet the two cases were so connected that the law as declared in that case became the law in this one, and we feel...