Cain v. Gold Mountain Mining Co. , 27 Mont. 529 ( 1903 )

ME. JUSTICE HOLLOWAY

delivered tbe opinion of tbe court.

Tbe plaintiff, Thomas Cain, was employed as a miner by the defendant, tbe Gold Mountain Mining Company, in tbe Euby mine, in Jefferson; county, Montana, working in the slopes getting out ore1. Tbe operations of that portion of tbe mine were reached through a tunnel about 600 feet in length. A track of iron rails was laid in tbe tunnel, and ordinary tram cars were used to haul out the ore and waste. Tbe tunnel bad sufficient grade that tbe cars ran out by force of gravity and with considerable velocity. On January 19, 1898, tbe plaintiff left bis work in tbe stopes, went to tbe mouth of tbe tunnel, and, in attempting to return to bis work, met a loaded car, and was by it crushed against tbe side of tbe tunnel and severely injured. He brought this action for damages, alleging negligence on tbe part of tbe defendant company in that tbe tunnel through which be bad to go to bis work was too narrow to permit a man and car to pass in it. Tbe answer denied any negligence on tbe part of tbe defendant; alleged contributory negligence on tbe part of the plaintiff; that tbe plaintiff assumed the risks incident to bis employment when be went to; work for tbe defendant company; and that tbe narrowness of tbe tunnel was apparent to the plaintiff, and constituted a risk which be so assumed. Upon tbe trial of tbe cause, after tbe plaintiff x-ested, tbe defendant interposed a motion for a nonsuit, which was overruled, and defendant then offered its testimony. A verdict in favor of tbe plaintiff for $2,500 was returned, and from a judgment entered'on that verdict^ and from an order overruling defendant’s motion for a new trial, these appeals are prosecuted.

Tbe only errors relied upon are, first, tbe insufficiency of tbe evidence to justify tbe verdict;, and, second, error of tbe court in refusing to grant defendant’s motion for a nonsuit.

1. The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to the same effect. Section 1113 of the Code of Civil Procedure, among other things, provides: “When the notice of the motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * If no such specifications be made the statement shall be disregarded on the hearing of the motion.” Under a specification of the insufficiency of the' evidence to- support the verdict, this court will not consider'' what the evidence does show, but only what it fails to show (First Nat’l Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Bardwell v. Anderson, 18 Mont. 528, 46 Pac. 443; Kumle v. Grand Lodge, 110 Cal. 204, 42 Pac. 634; Dawson v. Schloss, 93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to disregard them on this hearing.

2. Did the district court err in overruling defendant’s motion for a nonsuit ? The respondent contends that this question is not before this court, and that the error, if error at all, was waived' by the defendant when it proceeded to put in its evidence after the motion had been denied. Upon this proposition the courts are hopelessly divided in opinion. All the federal courts, and a number of Hie state courts, hold that the motion for nonsuit is waived by the moving party putting in evidence afterwards; while, on the other hand, very respeotable authorities hold to the contrary. It can hardly be said to be unfair to the lower court for this court to review its action in overruling a motion for a nonsuit merely because other testimony has been offered since that ruling was made, for, upon sucb bearing in tbis court, tbe alleged error will be treated from tbe standpoint of tbe district court, and witb reference to tbe evidence it bad before it in making tbe ruling, and not otherwise. It would seem that tbe better rule is that tbe motion is not waived, any more tban a demurrer is waived by pleading further after tbe demurrer bas been overruled. However, tbe defendant assumes tbe risk of supplying the deficiency in tbe plaintiff’s case by testimony elicited from bis witnesses, and, if sucb occurs, tbe error in overruling tbe motion would be entirely cured. Tbis is tbe doctrine adhered to in California, Oregon, Washington, Colorado, Utah (by statute), and Missouri. (Elmore v. Elmore, 114 Cal. 516, 46 Pac. 458; Ferguson v. Ingle, 38 Oregon, 43, 62 Pac. 760; Matson v. Port Townsend; etc. Co., 9 Wash. 449, 37 Pac. 705; Alta Investment Co. v. Worden, 25 Colo. 215, 53 Pac. 1047; Weber v. Kansas City C. Ry. Co.; 100 Mo. 205, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541.) In tbis state it bas heretofore been an open question. (T. C. Power & Bro. v. Stocking, 26 Mont. 478, 68 Pac. 857.)

Considered from tbe standpoint of the district court in passing upon tbe motion for a nonsuit, we are satisfied that no error was committed in overruling it. Tbe evidence was sufficient to go to tbe jury. Upon a, motion for a nonsuit, everything will be deemed to1 be proved which tbe evidence tends to prove. (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745.) Tbe rule is well established “that no cause should ever be withdrawn from the jury unless tbe conclusion from tbe facts necessarily follows, as a matter of law, that no recovery could be bad upon any view which could reasonably be drawn from the facts which the evidence tends to establish.” (Great Northern Ry. Co. v. McLaughlin, 17 C. C. A. 330, 70 Fed. 669.)

For the reasons herein set forth, the judgment and order appealed from are affirmed.

Affirmed.