De Atley v. Northern Pacific Railway Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. Near the easterly yard limits in the city of Livingston, during the month of July, 1908, the defendant railway company maintained four tracks, which for the purposes of this appeal will be designated the “Main,” “No. 1,” “Old,” and “Stock Yards” tracks. The “Main” track over which passenger trains were operated was the most southerly one. Some sixty-six feet north of this track was ‘ ‘ No. 1 ’ ’ track. North of “ No. 1 ” track was the “Old” track; and north of this the “Stock Yards” track. These four tracks crossed the public road within the city limits. On or about July 9, 1908, the plaintiff was hauling grain from his home north of Livingston, to the elevator in that city, using a four-house team in his work, and it was necessary for him to cross the four tracks mentioned at the public road crossing referred to above. When plaintiff’s team had crossed track “No. 1,” a passenger train moved rapidly from the west on the “Main” track, passed plaintiff’s team, which became frightened and unmanageable, upset the wagon on which plaintiff was riding, with the result that plaintiff was crippled, his wagon damaged and one of his horses injured. At the conclusion of the testimony upon the trial of the case, the court granted defendant’s motion for a directed verdict, and under instruction a verdict was returned in favor of the defendant and a judgment rendered and entered in accordance therewith. From an order denying his motion for a new trial the plaintiff appealed. The complaint charges that the railway company was negligent in the following particulars: (1) In placing a number of box-cars on track “No. 1” immediately west of the crossing, [229] which ears obstructed the plaintiff’s view of the “Main” track to the west; (2) in failing to give any warning signal as its passenger train approached the crossing; (3) in running its train at an excessively high rate of speed; and (4) in sounding the whistle of .the locomotive drawing the passenger train unusually loud as the train passed plaintiff’s team. All these allegations of negligence were denied in the answer, and the defendant pleads affirmatively the defense of contributory negligence. The motion for a directed verdict specifies as the grounds thereof, that plaintiff failed to prove all the concurring acts of negligence charged; that he failed to prove any act of negligence alleged, and that the evidence shows contributory negligence on plaintiff’s part. The order sustaining the motion is general. In this court counsel for respondent railway company have not urged the defense of contributory negligence, but have insisted that the trial court’s order is fully justified upon the other grounds of the motion. 1. It is insisted that the several acts of negligence are charged as concurrent, in the sense that proof of all of them is necessary to make out the plaintiff’s case, but with this we do not agree. In attempting to show the causal connection between the acts of negligence charged and the injury to plaintiff, the complaint might have been much more specific, and we are not prepared to say at this time that proof of any one of the acts of negligence charged would warrant a recovery in plaintiff’s favor; but we think that the allegations with respect to one or two of the negligent acts might have been omitted and the complaint still state a cause of action; in other words, that the several acts of negligence are not charged to be so far interdependent that proof of all is essential to make out a case. For instance: It cannot be said that the complaint makes the allegation with respect to the act of leaving the box-cars on “No. 1” tráck essential to a complete statement of the cause which led directly to plaintiff’s injury. The case of Forsell v. Pittsburgh & Mont. Copper Co., 38 Mont. 403, 100 Pac. 218, presents one of the best examples to be found in the books of a complaint which charges concurrent acts of negligence, using the term “concurrent” in the [230] sense of acts so far mutually dependent that, in the absence of any one the accident would not have occurred. The word “concurrent” is not an apt one to use in this connection, but the courts have adopted it for want of a better term. In Frederick v. Hale, ante, p. 153, 112 Pac. 70, we reviewed this question at length, and distinguished cases of the class to which the Forsell Case belongs from cases in which several acts of negligence are charged, but in which a combination of all the acts is not made essential to produce the injury. Our conclusion is that under the allegations of this complaint it was not necessary for plaintiff to prove all the acts of negligence as charged in order to make out his ease. 2. It is urged that plaintiff did not prove any act of negligence alleged. One act of negligence charged was the failure of defendant’s employees who operated the passenger train to give any warning signal as the train approached the crossing over which plaintiff was about to pass. Section 4289, Revised Codes, provides: “If any railroad corporation within this state * * * shall permit any locomotive to approach any highway, road or' railroad crossing, without causing the whistle to be sounded, at a point between fifty and eighty rods from the crossing, and the bell to be rung from said point until the crossing is reached, * * * [it] shall be deemed guilty of a misdemeanor,” etc. The evidence in this case tends to show that the passenger train approached the crossing in question without giving any warning signal whatever until it was approximately one hundred feet from the crossing, when the whistle was sounded. There is in fact a slight variance between the allegation of the complaint and the proof, but it can hardly be said to be material. The evidence tends to show a violation by the defendant company of the provision of the statute referred to above, and this of itself makes out a prima facie case of negligence. (Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 Pac. 140; Sprague v. Northern Pacific Ry. Co., 40 Mont. 481, 107 Pac. 412.) 3. The evidence tended to show that the passenger train was proceeding at the rate of twenty-five miles per hour. We are [231] not prepared to say that, standing alone, this evidence is sufficient to establish negligence as a matter of law, but when considered in connection with the evidence tending to show that the crossing was within the city limits; that plaintiff’s view was obstructed by the cars standing on “No. 1” track; and that there was not any warning given of the approach of the train until it was within one hundred feet of the crossing, it became a question for the determination of the jury whether under the circumstances the rate of speed was excessive. (International & G. N. R. Co. v. Starling, 16 Tex. Civ. App. 365, 41 S. W. 181; 3 Elliott on Railroads, sec. 1160; 2 Thompson on Negligence, sec. 1873 et seq.) 4. It cannot be said that the evidence in this case establishes contributory negligence on the part of plaintiff as a matter of law. In fact, counsel for respondent do not urge that ground of their motion in this court. 5. We think the complaint states a cause of action. Some of the allegations are so indefinite that it is difficult, if not impossible, to see the causal connection between some of the acts of negligence and the injury. But in the absence of a special demurrer or motion to make more specific, we think the complaint is sufficient under the rule repeatedly announced by this court. (Logan v. Billings & Northern R. Co., 40 Mont. 467, 107 Pac. 415, and cases cited.) Our conclusion is that the case should have gone to the jury for a determination of the merits. The order denying plaintiff’s motion for a new trial is reversed, and the cause is remanded for a new trial. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Smith concur.