Winnicott v. Orman

• Decision Date: 28 June 1909
• Parties: WINNICOTT v. ORMAN et al.
• Court: Montana Supreme Court

39 Mont. 339

WINNICOTT

v.ORMAN et al.

Supreme Court of Montana.

June 28, 1909.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by William T. Winnicott against J. B. Orman and others. From a judgment order granting defendants a new trial, plaintiff appeals. Affirmed.

Action by plaintiff for damages for a personal injury, alleged to have been suffered by him through the negligence of the defendants during his employment by them as a laborer in the construction of a railroad. During the month of January, 1907, the defendants Orman & Crook, copartners, were engaged in construction work for the Chicago, Milwaukee & St. Paul Railway Company of Montana. At a point some miles south from the city of Butte there was a construction camp, known as “Moran's camp.” Plaintiff had been at work at this camp from January 15th up to the 29th. It is alleged that the defendant Moran was employed by defendants Orman & Crook to supervise and oversee the work; that on January 29th the said Moran, acting by and through his boss or foreman, one Rumsey, had general control of the laborers employed at that point, including plaintiff; that, while acting within the scope of his employment, the said Rumsey ordered plaintiff and one Melton to loosen certain frozen ground, to be removed for the building of the roadbed, by picking it up with tools commonly known as pickaxes; that without plaintiff's knowledge the defendants had carelessly and negligently made the said ground unsafe and dangerous, by leaving in it what is known as a “missed hole.” The complaint then proceeds: “That on the 28th day of January, 1907, the boss then having general supervision, control, and command of said laborers at the said Moran's camp, while acting within the scope of his employment, requested and commanded a certain number of said laborers, plaintiff and the said Guy M. Melton not being among the said number, to loosen the said frozen ground by drilling holes in it, and placing in the said holes powerful explosives, commonly known and designated as giant powder and dynamite and by exploding the said explosives. That connected with the said explosives were fuse, a material which burns slowly, and thereby permits persons to seek a safe distance before the explosion occurs, which occurs when the fire reaches the explosive. That connected with some of the explosives were what are commonly known and designated as caps, a material which, when brought into a sudden and forcible contact with some other hard object, emits a little spark of fire which, when it comes into contact with the giant powder or dynamite, causes an explosion. That on the said 28th day of January, 1907, the said certain number of laborers at said Moran's camp had been requested and commanded to loosen the said frozen ground by means of the said explosives. That because of a defective fuse, or because of some fact not known to the plaintiff, the fire never reached the explosive in the said missed hole, or because of the fact that the said explosive was damp and frozen, the said explosion did not occur, or was not complete, and the said explosive remained in the said missed hole during the night of the 28th day of January, 1907, until the 29th day of January, 1907, and until plaintiff and the said Guy M. Melton were requested and commanded by the said walking boss to pick loose the said frozen ground in which was the said missed hole, and that neither the plaintiff nor the said Guy M. Melton knew, or had reason to know, of the presence of the said missed hole, but that the defendants had knowledge of the presence of the said missed hole in the said frozen ground, or in the exercise of ordinary care and diligence would have had knowledge thereof, because of the fact that the said boss having general supervision and control and command of the said laborers at the said Moran's camp on the said 28th day of January, 1907, had knowledge thereof, or in the use of ordinary care and diligence would have had knowledge thereof. That without negligence on the part of the plaintiff, and while plaintiff was exercising due and diligent care, and through the negligence of the defendants, while the plaintiff and the said Guy M. Melton, at the request and command of the defendants, were in the act of picking loose the said frozen ground, either the pickax that plaintiff was using, or the one that the said Guy M. Melton was using, came into sudden and forcible contact with the explosives in the said missed hole, or with a cap connected with the said explosives, thereby causing an explosion, which said explosion caused certain parts of the said explosives, among which were burning powder, glycerin, and other burning materials, to be thrown and hurled into the eyes and face and at the body of the plaintiff; causing him to become permanently blind; destroying his eyes; to be disfigured for life; to suffer great pain and agony of mind; causing his shoulders to be bruised and bruising his left lower limb; and causing him to become permanently disabled,” etc. The separate answer of defendant Moran alleges that at the time stated in the complaint he was engaged in construction work under a subcontract with Orman & Crook; that plaintiff was employed by him; that when the plaintiff entered such employment he knew that it was of such character as to require the use of explosives, and that he therefore assumed the risk incident to that character of work. He denies generally all the allegations of the complaint which are not admitted by this paragraph.

The defendants Orman & Crook, admitting that they were copartners as alleged, deny all the other allegations of the complaint. It is alleged that prior to the time the plaintiff was injured they had obtained, from a firm known as McIntosh Bros., a subcontract to do construction work; that they had in turn sublet a portion of the work covered by this contract to defendant Moran; that they had no control or supervision of the work being done by him; their only power in that behalf being to accept or reject it when completed; and that plaintiff was never at any time in their employ. Upon these allegations there was issue by reply.

At the conclusion of plaintiff's evidence the defendants interposed separate motions for nonsuit. These having been overruled, and the defendants declining to introduce any evidence, the jury returned a verdict for plaintiff. Thereafter an order was entered granting defendants a new trial. Plaintiff has appealed.

N. A. Rotering and S. T. Hogevoll, for appellant. W. E. Carroll, for respondents.

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

The motion for new trial was made on several of the statutory grounds, including insufficiency of the evidence to justify the verdict. The court sustained it by a general order, but attached to the order a memorandum stating, as its reason for granting the motion, that the evidence is insufficient, in that it “leaves it speculative and conjectural whether the explosion by which plaintiff was injured was due to a missed hole, for which defendants might be liable, or due to a piece of dynamite accidentally in the loose earth, and for which defendants are not liable.” Contention is made by counsel for appellant that this court may consider this reason alone; and, if the court was in error in granting the motion, the order must be reversed, without regard to whether the evidence is insufficient in other particulars, or whether there were errors of law requiring the granting of a new trial. In Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 Pac. 592, the same contention was overruled by this court. The rule declared therein has been uniformly observed by this court. State v. Schnepel, 23 Mont. 523, 59 Pac. 927;Gillies v. Clarke Fork Coal Min. Co., 32 Mont. 320, 80 Pac. 370;Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455;Case v. Kramer, 34 Mont. 142, 85 Pac. 878;Wright v. Mathews, 28 Mont. 442, 72 Pac. 820;Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 Pac. 106. As was stated in Menard v. Montana Central Ry. Co., supra, the memorandum opinion of the trial judge is no part of the record. It may not therefore be looked to for the purpose of limiting the scope of the general order, or restricting the review of it by this court. The order is before us for review generally, upon the record presented to the district court; and, if it can be justified upon any of the grounds of the motion, it must be affirmed.

Under the allegations of his complaint, and the issues made thereon by the defendants' answers, it was...