Tudor v. Northern Pacific Ry. Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This is an action for damages for a personal injury. The plaintiff recovered judgment against the defendant railway company, and from that judgment and an order denying a new trial the railway company appealed. There are several assignments of error, but only one need be considered, as it is determinative of this appeal. The plaintiff, who was a passenger upon defendant railway company’s train between Logan and Bozeman, was injured. In his complaint he charges negligence on the part of the carrier [460] and the train conductor, as follows: ‘ ‘ That at Bozeman, -and before the train on which plaintiff was riding came to a full stop, the said defendants negligently opened the vestibule of the said car on which plaintiff was standing and the said defendants negligently permitted a crowd of passengers, greater than the plaintiff could withstand, to surge out upon the platform of the vestibule of the car on which said plaintiff was riding and the said defendants negligently permitted the said crowd of passengers then and there to push, and they and a certain brakeman of the defendant acting negligently did then and there push the plaintiff from the said car.” There is also an allegation that the ears were overcrowded, but this fact had nothing whatever to do with the injury, and that ground of negligence, if such it was intended to be, was apparently abandoned at the trial. The evidence failed entirely to support the allegation that any of the passengers contributed to plaintiff’s injury, and the court so informed the jury in instruction No. 6 and withdrew that portion of the charge from further consideration. There were but two grounds of negligence relied upon: First, opening the vestibule door, and, second, forcing the plaintiff [1] from the car while the train was in motion. The evidence given by the plaintiff himself is that the vestibule door was ■opened by the train conductor at his special' request. The plaintiff testified: “About getting the vestibule open, just before I got to Bozeman, I asked the conductor if he would open it so as I wouldn’t have to go back through all the people, wanted to get out of there instead of going through the car to get out. The conductor did it when we got to Bozeman; I don’t know how far it was, just before we got to Bozeman, I asked him that question. After he said he would open it, he went through the car after that, when he came back he opened the door; the conductor opened it himself. He stepped back in behind me and I stepped out on the platform, or onto the steps and took hold of the bar ■and had a valise in my hand, and I stood there waiting for the train to stop and I would get off, and I was struck between the shoulders and that is all I know.” If, then, the opening of the [461] door was a negligent act, it was one committed at the plaintiff’s request and for his benefit, and he will not be heard to complain. Volenti non fit injuria. The testimony given by plaintiff eliminated the opening of the door as actionable negligence, and left the case to go to the jury [2] upon the allegation that plaintiff was struck, pushed or forced from the car while the train was in motion. Upon the submission of the case, counsel for the railway company sought to have the court restrict the jury to a consideration of that one ground of negligence, by an offered instruction (D7), but the court refused the instruction as offered, modified it to such an extent as to submit to the jury the two charges of negligence contained in the complaint, and then, in instruction No. 12, told the jury that in order for plaintiff to recover it was only necessary for him to establish, by a preponderance of the evidence, either one of the acts of negligence alleged in the complaint; in other words, the trial court submitted the cause upon the theory that proof of negligence in opening the vestibule door, or proof of negligence in forcing plaintiff from the car, was sufficient to justify a recovery by the plaintiff. It is impossible to determine upon which of these two charges of negligence the jury founded its verdict; but as we have said above, the plaintiff cannot be heard to say that in complying with his request and opening the door, the agents of the railway company were negligent. It was error to refuse offered instruction D7 as presented; and in submitting both charges of negligence to the jury, the trial court adopted an erroneous theory of the ease to the prejudice of the appellant. The judgment and order are reversed and the cause is remanded for a new trial. Reversed and remanded. Mr. Chief Justice BraNtly and Mr. Justice SMith concur. Mr. Justice Holloway: In addition to what is said above'as the conclusion of the court, I am of the opinion that the evidence is entirely insufficient to support either charge of negligence and [462] that tbe motion for nonsuit should have been granted. So far as disclosed by the record, no one saw the plaintiff pushed, crowded or forced from the car. He testified that he received a blow in the back which threw him from the car and caused his injury; but he did not see the blow struck and does not know who it was that administered the force. Even a- railway company ought not to be mulcted in damages without proof of wrongdoing, merely because no one else can be found upon whom to fix liability. By a process of elimination, counsel for plaintiff seek to draw the inference that it must have been the brakeman who caused plaintiff’s fall; but the circumstances from which the inference is sought to be drawn are so intangible that at best they produce nothing more than a bare scintilla of evidence, and that is not sufficient to support a judgment. (Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 Pac. 867.) In order to support a judgment there must be substantial evidence of every fact necessary to a recovery. Mere conjectures or speculations are not sufficient. (Watson v. Colusa-Parrot M. & M. Co., 31 Mont. 513, 79 Pac. 14.)