Flaherty v. Butte Electric Railway Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. A statement of the facts of this case will be found in the opinion upon the former appeal. (Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pac. 416.) Upon the return of the cause to the district court, plaintiff amended his complaint, and the issues being joined, a trial was had, which resulted in a verdict and judgment in his favor for $25,000. Defendants have appealed from the judgment and from an order denying them a new trial. 1. The complaint as originally drawn charged negligence in the operation of the car which resulted in the injury, particularly in that Le Sage, the motorman at the time, failed to turn off the electric current, apply the brakes, and stop the ear before striking the child. Upon the former appeal we held that the evidence failed to prove the specific act of negligence thus pleaded. The amendment made to the complaint consists in substituting for the allegation of the specific aet of negligence in failing to apply the brakes, etc., an allegation that Le Sage failed to keep any vigilant or proper lookout, whereby he might have seen the child and avoided the injury. It is now insisted that the so-called amendment was in fact the substitution of a different cause of action. There cannot be any question as to the general rule of law applicable in such cases. In Leggat v. Palmer, 39 Mont. 302, — 150 — 102 Pac. 327, this court said: “Under the statute, to allow amendments is the rule; to deny them is the exception. The rule observed by this court has always been to allow .them with [1] great liberality, where they do not change the nature of the action, or mislead- the adversary to his prejudice; its application going even to the extent of permitting them after verdict and judgment. ’ ’ The only difficulty arises in applying the rule to the facts of the particular case. “To constitute a cause of action for a tort, then, the plaintiff’s right must have been infringed by the wrongful act of the defendant, with the result that plaintiff suffered damages.” (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960.) It is alleged in the original and also in the amended complaints that the negligence of the defendants in operating the car caused the injury. May the plaintiff, then, substitute as the charging part of his complaint one specific act of negligence for another, without introducing a different cause of action ? In Kerr v. Grand Forks, 15 N. D. 294, 107 N. W. 197, the original complaint charged that the injury resulted from negligence of the city in permitting a sidewalk to be constructed in a dangerous manner. The amendment charged that the negligence consisted in permitting the sidewalk to remain in a dangerous condition after the city had notice. It was held that this amendment was properly allowed. In Peery v. Quincy etc. R. Co., 122 Mo. App. 177, 99 S. W. 14, the original complaint charged that the negligence consisted in- failing to keep a fence in repair. The amendment charged negligence in maintaining a defective gate. The allowance of this amendment was held proper. In Chapman v. Nobleboro, 76 Me. 427, the pleading is not set forth, but in disposing of the objection to the amendment the Court said: “The first of the amendments is, not a change in, but an addition to, the description of the alleged defect in the way, and the second relates to the manner in which the accident happened, leaving the accident itself and the result of it the same. There is therefore no change in the cause of action, either — 151 — in the alleged defect or the result of it, and the allowance of the amendments was within the discretion of the presiding justice.” In Davis v. Hill, 41 N. H. 329, the original declaration charged negligence in permitting a roadway to be uneven and encumbered with snow and ice, by reason whereof the injury resulted. The amendment charged negligence in failing to maintain a railing or barrier along the road, by reason of which the injury resulted. It was held that this amendment was properly allowed. In Montgomery Traction Co. v. Fitzpatrick, 149 Ala. 511, 43 South. 136, 9 L. R. A., n. s., 851, the original complaint charged that plaintiff was wrongfully ejected from a street-ear on the Court street line by the conductor of the car. The amendment charged that the conductor on the Electric Park line negligently tore and mutilated plaintiff’s transfer ticket, by reason whereof he was ejected by the conductor of the Court street line. It was held that this amendment was proper. In Salmon v. City Electric Ry. Co., 124 Ga. 1056, 53 S. E. 575, the original complaint charged negligence on the part of the railway company in placing certain poles too near the track. The amendment offered charged negligence on the part of the conductor in failing to warn the plaintiff of the proximity of the poles to the track. It was held error to refuse the amendment. In Smith v. Bogenschultz, 14 Ky. Law Rep. 305, 19 S. W. 667, 20 S. W. 390, the original complaint charged that plaintiff’s injury was caused by the jostling of a ladle containing molten iron, occasioned by the narrowness of the passageway through which the ladle had to be carried. The amendment charged that the injury resulted from the negligence of defendant in furnishing a defective ladle. It was held error to refuse the amendment. In City of Evanston v. Richards, 224 Ill. 444, 79 N. E. 673, the original declaration pleaded negligence on the part of the city in permitting certain boards in a sidewalk to become loose, whereby plaintiff tripped and fell. The amendment charged — 152 — negligence in permitting the sidewalk to remain in an unsafe condition, by reason whereof plaintiff stepped upon and broke through a defective board, thereby sustaining the injury. It was held proper to allow the amendment, and in the course of the opinion the court said: “In the case at bar the act or wrong charged was the disregard by the appellant of its duty to keep its sidewalk in safe repair, and in permitting it to be and remain in bad and unsafe repair and condition. In the original declaration the pleader stated the manner in which the condition complained of resulted in the injury to appellee. Upon the trial the proof tended to show the condition complained of was as alleged in the declaration, but that the manner of appellee’s injury was not as alleged, but in the manner stated in the amendment. The act or wrong of appellant which resulted in the injury was the same in the original declaration as charged by the amended declaration; the mode or manner in which it resulted in the injury was stated differently. ’ ’ The theory of all these eases is that, so long as the plaintiff [2] adheres to the injury originally declared upon, he may amend his pleading -by alleging that the injury was caused in a different manner, without infringing the general rule against introducing a different cause of action. (1 Ency. of PI. & Pr. 564.) In More v. Burger, 15 N. D. 345, 107 N. W. 200, it is well said: “The test generally adopted to determine whether an amendment is permissible is whether a recovery upon the cause of action set up by the amendment would be a bar to a suit upon the other.” The same injury is described in the original and in the amended complaint in this instance, and relief for that injury is sought in each pleading. The measure of damages is the same in each instance, and that a judgment recovered upon either pleading would bar recovery upon the other admits of no doubt. "We approve the action of the district court in allowing the amendment, as well within the rule heretofore announced by this court. 2. It is insisted that the complaint does not state a cause of action against the railway company. It must be admitted at — 153 — once that the liability of the railway company for the negligent act of Le Sage is grounded in the rule respondeat superior, and in order for that rule to apply the person sought to be charged must stand in the relation of superior to the person doing the wrongful act. (1 Thompson’s Commentaries on the Law of Negligence, see. 578; King v. New York Central & H. R. R. Co., 66 N. Y. 181, 23 Am. Rep. 37; Hexamer v. Webb, 101 N. Y. 377, 54 Am. Rep. 703, 4 N. E. 755.) It is urged that the complaint in this instance does not allege that Le Sage was a servant of the railway company; and while the allegation in express terms cannot be found in the amended complaint, and its [3] absence is scarcely excusable, still, if there are sufficient facts alleged from which such relationship may fairly be inferred, we will not feel justified in reversing the judgment. The complaint alleges that at the time of the injury the defendant railway company was the owner of, and operating, street-cars on. West Park street in Butte, for the purpose of transporting passengers from point to point in the city; that at such time and place Le Sage was in charge of one of said cars, in the capacity of conductor; that at such time and place the car so in charge of Le Sage was proceeding along West Park street between Columbia and Crystal streets; “that the defendant Le Sage was driving said car as motorman, and not acting in his usual and regular capacity as conductor on said car, doing so with the knowledge and consent of the defendant corporation.” In each of the separate answers filed by the defendants, these specific allegations are admitted. In attempting to charge the relationship of master and servant, it must be conceded that it is not necessary to plead any facts other than those necessary to be proven, in order to establish such relationship when in issue. In 1 Shearman & Redfield on the Law of Negligence, section 158, it is said: “When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car, or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner — 154 — of the thing, without proving affirmatively that the person in charge was the defendant’s servant.” In 1 Thompson’s Commentaries on the Law of Negligence, section 580, the same rule is announced as follows: “So it is not necessary to prove an express contract of employment in order to establish the relation of master and servant, but the relation may be implied from circumstances, as where the person committing the wrong is at the time in the actual conduct of the business of another with his seeming consent, in which case that, other will be responsible for the wrong done by the former within the scope of the apparent employment, on the ground that he has induced the belief that such person is his servant, and has led another to act upon that belief to his injury.” To the same effect are McCoun v. New York Central & H. R. R. Co., 66 Barb. (N. Y.) 338; Growcock v. Hall, 82 Ind. 202; Norris v. Kohler, 41 N. Y. 42. Even though this complaint may not be a model pleading, we think it fairly appears from it that Le Sage was the servant of the railway company at the time of the injury, and that the rule of respondeat superior is properly invoked. 3. It is insisted, also, that the complaint fails to state facts showing a breach of duty on the part of defendants, and also that the negligence alleged was a proximate cause of the injury. [4] The complaint alleges, and the answers admit, that the car was being operated in a public and much-used street in the city of Butte. From this fact it follows that the defendants were under the obligation or duty to keep a vigilant lookout for people who might be rightfully using the street. The general rule, with the authorities supporting it, is found stated in 36 Cyc. 1520, as follows: “It is the duty of the driver or motorman of a street-car to exercise reasonable and ordinary care to discover persons using the street on or near the track, and liable to be injured by his ear, in time to avoid injuring them, and if he fails to discover a person on or near the track, when by the exercise of ordinary care he could have done so in time to stop the car or otherwise avoid the injury, it is negligence for which the company is liable.” — 155 — The complaint alleges that Le Sage, the motorman, at the time failed to keep a vigilant or proper lookout, whereby he might have seen the child before it came into a place of danger. We think the complaint contains a sufficient statement of the duty and breach. The only specific act of negligence charged is in failing to keep a proper lookout; and the complaint then proceeds: ‘ ‘ That [5] by reason of the negligence of said defendants he [plaintiff] was injured.” This is a sufficient showing of the causal connection between the alleged act of negligence and the injury. (Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 129 Am. St. Rep. 659, 100 Pac. 971; see, also, same case in 16 Ann. Cas. 1189, and note; Reino v. Montana Min. Land Dev. Co., 38 Mont. 291, 99 Pac. 853.) 4. Without reviewing the evidence at length, we think it sufficient to go to the jury upon the question of Le Sage’s negligence in failing to keep a proper lookout, and that a verdict was justified if the plaintiff’s evidence was treated as true, as it must have been. We cannot agree with counsel for appellants that the evidence is subject to but one construction, viz., that the child appeared on the track under such circumstances as to make its injury unavoidable. There is a sharp conflict [6] in the evidence as to whether a wagon passed the car immediately before the injury happened or whether there was a dust storm which might have interfered with Le Sage in attempting to keep a lookout; and under these circumstances it was proper to submit to the jury the question whether or not the injury was or was not unavoidable. (Harrington v. Butte etc. Ry. Co., 39 Mont. 299, 102 Pac. 330.) 5. It is insisted that the verdict returned in this instance is grossly excessive. It has been well said: “To ascertain what is a fair and just compensation for a personal injury is a judicial problem of difficult, if not impossible, solution.” In the note to Cleveland etc. R. Co. v. Hadley (170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A., n. s., 527), as reported in 16 Ann. Cas. 1, there is a most complete collation of cases involving personal injuries. The cases are carefully analyzed and classified — 156 — according to the character of injury and the action taken by the appellate court. A review of those cases involving an injury of the character suffered in this instance discloses that, except in New York and Texas, in every instance where the verdict exceeded $15,000 it has been disapproved, and that in nearly every instance the amount has been reduced to $12,500, or less. While the views of these courts are not binding upon us, they at least indicate in a general way the prevailing opinion as to the reasonableness of verdicts in this class of cases. Considering all the facts and circumstances as disclosed by this record, [7] we think a recovery of $12,500 will compensate for the injury sustained, assuming, as we must, that it is possible to measure in money the extent of an injury which deprives a person of one member of his body. It is ordered that this cause be remanded to the district court, with directions to grant a new trial, unless within thirty days after the remittitur is filed, and plaintiff has notice thereof, he shall file with the clerk of the district court his consent in writing that the amount of the judgment be reduced to $12,500 as of the date of the filing of such writing. If such written consent be filed within the time designated, then the judgment shall be modified accordingly, and as modified shall stand affirmed, and under those circumstances the order refusing a new trial will also be affirmed, with costs to respondent. New trial granted nisi. Mr. Chief Justice Brantly and Mr. Justice Smith concur. Behearing denied April 17, 1911.