Melzner v. Chicago, Milwaukee & St. P. Ry. Co. , 51 Mont. 487 ( 1915 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In November, 1912, Albert Page was employed by the Chicago, Milwaukee & St. Paul Railway Company as 'a car repairer in the shops at Harlowtown. He was killed by an incoming eastbound freight train, and this action by the administrator of his estate was brought to recover damages. The railway company, Homer Ganon, the engineer in charge of the locomotive at the time of the accident, and Hugh Spencer, superintendent, were joined as defendants. Spencer was dismissed on motion for nonsuit, and the trial proceeded upon the issues made by the complaint, the answer of the other defendants and the reply thereto. A verdict was returned in favor of the plaintiff for $20,000, and from the judgment entered thereon and from an order denying a new trial, these appeals are prosecuted.

The main line of the railway extends substantially east and west, south of the town of Harlowtown and immediately south of the passenger depot. South of the main line are six sidetracks, and south of these tracks, and southeast of the depot, 600 or 700 feet distant, are the roundhouse and shops. Company employees who live in the town reach their places of employment at the shops by crossing the tracks from or near the depot. Page was killed early in the morning of November 15, 1912, while he was attempting to cross the tracks from a point west of the depot to his place of work. At the conclusion of plaintiff’s case in chief the defendants moved for a non-suit, which was denied as to the railway company and Ganon. In this ruling the trial court erred. The plaintiff had failed altogether to make out a prima facie case of actionable negligence. About all that can be said is, that he established that Page was run over and killed in a race with the train for the [1] crossing. But when the defendants elected to proceed with their evidence, they assumed the risk of supplying the deficiencies in the plaintiff’s case, by testimony elicited from their own witnesses, and to whatever extent this was done, the error in the ruling was cured. (Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 Pac. 1004; Tergy v. Selena L. & Ry. Co., 39 Mont. 213,18 Ann. Cas. 1201, 102 Pac. 310.) [2] was not required to prove every act of negligence charged; it was sufficient that he prove any act which was properly pleaded as a proximate cause of the death. (Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Moyse v. Northern Pac. Ry. Co., 41 Mont. 272, 108 Pac. 1062.)

Without referring to defendants’ testimony at length, it suffices to say' that in our judgment it supplied sufficient facts to complete the plaintiff’s prima facie case; that is, the facts adduced by defendants, with the facts brought out by plaintiff, furnish a basis from which the legitimate inference might be drawn by the jury that the defendants were guilty of negligence in failing to keep a proper lookout, and that such negligence was a proximate cause of Page’s death. The plaintiff

The evidence discloses that the last signal with the locomotive whistle was given half a mile before the place of the accident was reached. Section 4289, Revised Code, 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 50 and 80 rods from the crossing and the bell to be rung from the said point until the crossing is reached * * * it shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined, ’ ’ etc.

We do not agree with respondent that the evidence warrants the conclusion that at the time Page met Ms death, he was upon a highway, road or railroad crossing within the meaning of those terms as employed in the statute above. But even assuming [3] respondent’s premise, his case is not aided. The testimony is uncontroverted that Page and Agee started from the town of Harlowtown to their work at the shops; that they saw this train approaching, appreciated its proximity, and ran in an effort to cross the tracks ahead of it. The purpose of requiring warm ing signals to be given is to impart notice of the train’s approach. To one who has actual notice it is without significance that the warning is not given. If the engineer was remiss in failing to observe the statutory requirement, he was subject to prosecution for a misdemeanor, but his dereliction, if any, could not have contributed to the unfortunate accident. Causa próxima, non remota, spectatur, expresses a rule of law of universal application; and though it be conceded that a violation of the statutory duty constitutes negligence, a failure to warn one who sees an approaching train and appreciates the danger cannot be made a proximate cause of the death wMch results from the effort to beat the train to the crossing, — an effort often made and frequently -with the like result, as in this instance. There must be a causal connection between the injury and the negligence charged. (Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706.)

Instruction No. 5, given by the court, must have confused, [4] if it did not mislead, the jury. It announced the rule of care with respect to the servant’s working place, and must have impressed the jury with the idea that the evidence, if believed, would warrant a finding of actionable negligence on the part of these defendants, in failing to exercise ordinary care in providing the deceased with a reasonably safe place in which to work. The complaint and the evidence disclose that Page was killed 600 or 700 feet from his place of employment, so that any dereliction of duty with respect to conditions at the shops was not a proximate cause of the death. If the trial court intended to include the pathway or means of ingress or egress as a part of the working place, the intention should have been made manifest. The instruction, though correct as an abstract rule of law, was inapplicable to the facts, and should not have been given.

By instructions 2 and 2y2 the subject of contributory negli[5] gence was injected into this case for the first time. In the answer it is alleged that Page came to his death through his own carelessness and negligence. This is not a plea of contributory negligence, as was pointed out in Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940. These instructions are altogether out of place, and error was committed in giving them.

The criticism of the court’s outline of the case to the jury [6] would be effectual here if counsel for defendants had proposed an instruction which succinctly stated the issues for trial and their offer had been refused. In the absence of such a tender their complaint is unavailable.

Larsen, a witness for defendants, was subjected to cross-[7] examination concerning the substance of his deposition taken some time before the trial. The absence of the deposition from the courtroom was not accounted for, and the cross-examination violated the plain mandate of our Codes and one of the elementary rules of evidence. (Rev. Codes, sec. 8025.)

Without objection from either party, the court instructed the jury: “If you find your verdict for the plaintiff, you cannot allow damages for grief or sorrow or for any other loss save and except the financial and pecuniary loss suffered by the widow and children on account of the death of Albert Page. In such case, you must confine your considerations to the amount that will compensate the wife and children for the pecuniary benefit which they would probably have received from Albert Page if the accident had not occurred.” This [8, 9] became the law of the case, binding upon the jury, and a verdict contrary to it is against law and cannot be upheld. The only evidence from which any deduction can be drawn concerning the pecuniary benefits which the wife and children would probably have received from Page during the expectancy of his life is furnished by the former wife herself. She testified that for a year and ten months prior to his death Page had contributed $50 or thereabouts to the support and maintenance of herself and children; that after July 1, 1912, and before he entered the employ of the railway at Harlow-town, he was out of employment. Measured by the standard laid down in instruction 15 above, the evidence would not sus: tain a verdict for any considerable amount, much less for $20,000.

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 Houloway concur.