Jenkins v. Northern Pacific Ry. Co.

MR. JUSTICE SMITH delivered the opinion of the court. Action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. Appeals from a judgment on verdict for the plaintiff, and from an order denying a new trial. The complaint alleges that the defendant corporation “operated a line of railroad in and through the city of Billings, and in connection therewith maintained and operated a passenger station, platform, and sidetracks in said city for the purpose of accommodating passengers using said line of railway and persons traveling to and from the city of Billings by rail- • road.” This allegation is admitted by the answer. The testi [301] mony shows that on January 7, 1910, plaintiff left her home in Sheridan, Wyoming, on train No. 41 of the Chicago, Burlington & Quincy Railroad,- and arrived at Billings at 9 o ’clock at night; the train stopped on the third track south of and nearly opposite the defendant’s depot in Billings and all the passengers got off; the night was dark and the platform was dark; while going along the track platform on her way to the defendant’s depot she fell into an open water hole in the platform and was severely injured; she did not see the water hole when she stepped into it; there was no rail or other protection around it, and no person about the train to show her to the depot; the water holes were used for watering trains, and each had an iron cover to close it when not in use; there had been a blockade on defendant’s line, which was relieved on the day in question; the first train from the West reached Billings at 3:10 that afternoon, “and then a continual string of trains from that time on until 1 o’clock the next morning, going both ways — plenty of cars to water.” H. T. Brown, defendant’s car foreman, testified: “I was there to see that things went right. I did not see any water hole open there that night. I could not watch all of them — twelve or thirteen of them — and I could not watch each one. I was there to see that these holes as much as I could were kept closed. If left open it was wrong, and I was there to correct anything that was wrong. Eighteen or twenty trains came in from 3 o’clock until midnight on the afternoon and evening of January 7.” Swanson, an employee of the defendant company who was on duty that night, testified: “I didn’t see any of these water holes in the platform open that night because the man [men] that opens these and waters the coaches have special orders not to leave none of these holes open, and if you do and it is known to anyone you will get discharged. The chances are they were open. I didn’t see none. I couldn’t say whether they were or not. We see them open every day. I seen them take a hose off and put the cover on.” [302] 1. Plaintiff’s counsel contend that it was the duty of the defendant to exercise ordinary care to keep its premises, over which the Chicago, Burlington & Quincy passengers were required to pass to and from trains, reasonably safe for their passage, and this is conceded by counsel for the defendant. But the latter argue that the defendant cannot be charged with a violation of such duty in this case unless the cover of the water hole was shown to have been removed by it, or by someone for whose conduct it was responsible; or that it knew the hole was open; or that, in the absence of a'ctual notice, the hole had been uncovered a sufficient length of time to charge it with constructive notice. If the plaintiff, however, made a prima facie showing that the cover was removed by some servant of the defendant, then it becomes unnecessary to consider the questions of notice and lapse of time. It is contended that there is not any evidence to show who removed the cover, and that it may have been done by some one not in privity with the defendant. We think this latter consideration may be disregarded. There is not any evidence or even a suggestion that an outsider ever opened one of the water holes. To do so would have been a trespass which is not to be presumed. The argument on this point is founded in mere conjecture, which is not permissible. While it is also true that negligence is not to be presumed, still, we think, there is testimony sufficient to warrant the conclusion that the hole in question was left uncovered by some employee of the defendant. Let it be borne in mind that the depot grounds belonged to the defendant, and that it, through its employees, was in the exclusive management and control of the platform and water holes and constantly using the latter. There was no defect in the platform or appurtenances — no breaking thereof; no unnatural, uncommon or extraordinary situation is disclosed. On the contrary, the physical condition of the water hole — that is, the condition of being open — was in strict accord with the plan of its construction and use. We think the railroad company, in the absence of evidence to the contrary, may fairly be presumed to be responsible for a condition of its property which is in entire [303] harmony with the notion of recent nse by one of its servants for an ordinary and legitimate purpose. The record shows that a blockade had just been broken and many trains were passing, some or all of which required to be watered. Many were watered. The weather was cold, and it may also be deduced, we think, from the testimony, that the defendant’s employees were extraordinarily busy on account of the passage of so many trains. Brown testified that there were so many water holes that he could not watch all of them, although he was there for the purpose of seeing that the holes were kept closed “as much as he could. ” It is not the injury, but the manner and circumstances of the injury, that justify the inference of negligence. Defendant’s employees had frequent occasion to uncover the holes, and no other person had any authority to open them. It appears from Swanson’s testimony that to some one or more of the employees was delegated the duty of opening and closing the holes, but not any of them were produced as witnesses, nor was any explanation offered of their absence from the trial. Inference is one kind of indirect evidence. (Rev. Codes, see. 7956.) An inference is a deduction which the reason of the jury makes from the facts proved without an express direction of the law to that effect. (Rev. Codes, sec. 7957.). “An inference must be founded (1) on a fact legally proved; and (2) on such a deduction from that fact as is warranted by a consideration of the usual propensities * * * of men.” (Rev. Codes, sec.. 7959.) We think it not an unwarranted inference from the proven facts in this ease that the employees of [1] the defendant company who were charged with the duty of watering trains, in the hurry and disorder incident to the arrival and departure of so many trains, on the cold day in question, omitted to re-cover the water hole into which the plaintiff fell. If this inference be a reasonable one, which we think it is, and no other reasonable inference can be drawn from the evidence, then the jury was justified in founding a verdict upon it. The supreme judicial court of Massachusetts, in Smith v. Boston Gaslight Co., 129 Mass. 318, where the trial court told the [304] jury “that there was evidence enough of want of proper care on the part of the defendant to make it responsible on the ground that it was bound to conduct its gas in a proper manner, and that the fact that the gas escaped wras prima facie evidence of some neglect on the part of the defendant,” in affirming the judgment said: “The escape of gas from a defective pipe into the room occupied by the plaintiff, with no explanation of the cause other than was offered, was some evidence of negligence. The pipes were made to contain the gas and conduct it safely, and it was the defendant’s duty to see that they were constructed in a proper form and of proper material; and that they were laid in the ground at a proper depth and in a suitable manner and kept in proper repair for that purpose. The construction and care of the works were exclusively in the hands of the defendant, and no cause independently of some negligence on its part is shown to have produced the effect.” 2. Plaintiff alleged in her complaint that she was “injured and bruised upon her right ankle, leg, hip, and body.” She was allowed to prove, over objection, that she had suffered an injury to her uterus. We find no error in this. The word “body” comprehends all portions of the body, inside and outside, and the general term employed advised the defendant that she would prove injuries to portions of her body other than her ankle, leg and hip. The indefinite and uncertain allegation of the pleading might have been taken advantage of before answering, but the point raised for the first time at the trial came too late. A general allegation of bodily injury is sufficient to warrant a trial court in receiving evidence of any injury to the person, in the absence of a special demurrer or demand for a bill of particulars. (Gordan v. Northern Pacific Ry. Co., 39 Mont. 571, 104 Pac. 679.) The judgment and order are affirmed. 'Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.