McIntyre v. Northern Pacific Ry. Co. , 56 Mont. 43 ( 1919 )

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to recover damages for the alleged wrongful death of Fred Lautwe, who was killed in the railroad yards at Butte in December, 1915, by being run over by a Northern Pacific locomotive in charge of Engineer C. A. Lawrence. The fireman, Williams, and brakeman, Finnegan, were joined as defendants.

It is alleged in the complaint that at the time of the accident the deceased was carelessly and negligently upon the railway right of way in a place of danger, but unobservant of the approach of the locomotive; that the individual defendants saw the deceased, saw that he was in imminent peril, and that he was apparently unconscious of danger; that by the exercise of ordinary care they could have avoided injuring him, but, notwithstanding these facts, they negligently, carelessly, wantonly and willfully drove the locomotive over him, inflicting injuries which caused his death. The answering defendants admitted that the boy was killed, that he was negligently upon the railway track, and denied all the other material allegations of the complaint.

Upon the trial of the cause, and at the conclusion of the evidence the court directed a verdict for defendants, and judgment was entered accordingly. Plaintiff appealed from .the judgment and from an order denying a new trial.

The complaint was drawn and the cause tried upon the theory that recovery could be had only under the last clear chance doctrine. The principal contention made by appellant is that sufficient evidence was introduced to establish prima facie that the members of the engine crew saw the boy in a place of imminent peril in time to stop the locomotive and avoid the injury.

On the afternoon of December 10, 1915, a "south-bound Oregon Short Line train was made up on the “boot” track immediately north of the platform of the Northern Pacific passenger station in Butte. The train was complete, except for a locomotive and dining-car. The dining-car of an incoming train was to be attached to the outgoing' train, and to effect this change a switch engine — the locomotive in question — was employed. It was attached to the mail-car, baggage-car, smoking-car, and day coach; the engine facing these cars toward the east with the tender to the west. As soon as the incoming train arrived, the switch engine, with the cars attached, backed to the west to secure the dining-car, and in so doing ran over the Lautwe boy, causing his death. In addition to the foregoing facts which are not in dispute, the plaintiff, the boy’smother, testified: That she was on the boot track near the Oregon Short line freight-house at a point where Delaware Street, if extended, would cross the track • that she was looking to the east searching for her boy ,• that she saw a boy narrowly escape injury from the incoming train on the main line track immediately south of the platform; that he ran to the north and stood in the. middle of the boot track, about twenty-five or thirty feet west of the west end of the tender of the switch engine, looking to the southwest, apparently watching the incoming train; that the switch engine moved to the west at the rate of two or three miles per' hour; that the footboard of the tender struck the boy in the back, knocking him forward to the ground between the rails; that he was dragged ten or fifteen feet before the body disappeared under the tender; that Engineer Lawrence was looking out of the cab window, facing westward, “and was looking toward the boy, and should have seen the boy from where he was looking. The boy was directly in his vision, directly in line with where Lawrence was looking. * # # tjús accident occurred, I should say, between half-past 4 and 5, and it was daylight. * * # When the switch engine started to back, I could see Mr. Lawrence leaning out of the cab window and looking toward me. * * * I did not know, at the time he was knocked down, that it was my boy. * •* * I couldn’t.say how many feet I was from where the boy was struck, but was quite a distance, too far to call to the boy. * * * When Engineer Lawrence was looking out, leaning out of the cab window, he was looking at the boy, and the movements of the boy.”

Ralph Shook testified, for plaintiff: That he, Walter Burgman, and another boy were standing about twenty-five feet north of the tender of the switch engine; that they had crossed the switch track a few seconds before, and did not see the Lautwe boy; that, after the switch engine began to move to the west, Walter Burg-man called out, and then “I turned west and saw the engine just about to hit the boy, and we both started to hollo”; that the fireman was in the cab looking west, and the boy was west of the engine and directly on the track, about the middle of the track, and “when I first saw him, he was about nine feet from the engine. ’ ’

The engineer testified that, about five minutes before he started to move the locomotive, he saw the Lautwe boy pass down the platform to the west with an armful of wood, then around the tender to the north, where he disappeared, and that he never saw him again until after he was dead. The brakeman testified to substantially the same facts. The fireman testified that he never saw the Lautwe boy after getting upon the engine; that after the engine started to move he heard some boys on the team track holloing, “Look out!” and “before I could realize that anything had happened I heard the engineer bringing the engine to a stop.” The engineer testified that his attention was first directed to the fact that something was wrong by motions made by the mail clerk on the incoming train; that he looked down from the cab window to the rail, and saw the boy’s head after it had been severed from the body, and that he had immediately brought the engine to a stop. Each of the individual defendants testified that, a few days before trial, he made tests with a locomotive of the same type and size as the one in service on the day of the accident — that particular locomotive having been wrecked in the meantime — and that looking from the cab window it is impossible to see a person on the track if he is as near to the tender as the evidence indicated that the Lautwe boy was standing when the engine started to move; that the tender, twenty-one feet long, eleven feet high, and seven feet six inches wide, cuts off the view of the track for a distance much greater than that which intervened between the tender and the Lautwe boy. Other witnesses, one of whom, at least, was apparently disinterested, testified to making like experiments and with like results. According to this evidence, viewed in the light most favorable to plaintiff, a person standing on the track would have to be not closer to the rear end of the tender than seventy-five feet to be seen from the cab window under any circumstances.

It is conceded by plaintiff that this accident occurred at a [1] place where the Lautwe boy had no right to be. So far as he was concerned, the railway company was entitled to the exclusive use of the yards, and the enginemen had the right to assume that .the track was clear. (Palmer v. Oregon Short Line R. Co., 34 Utah, 466, 16 Ann. Cas. 229, 98 Pac. 689.) Actionable [2] negligence arises only from a breach of legal duty. (Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 Pac. 473.) Under the doctrine of the last [3] clear chance, the duty to avoid injury arises only when the injured party is actually discovered in a position of peril, and apparently unconscious of his danger or unable to extricate himself, and the failure of the defendant to exercise reasonable care to avoid injuring him after such discovery constitutes the breach of duty. (20 R. C. L. 142.)

In Dahmer v. Northern Pac. Ry. Co., 48 Mont. 152, 136 Pac. 1059, this court, speaking of the doctrine of the last clear chance, said: “A ease calling for its application embodies three elements, viz.: (1) The exposed condition brought about by the negligence of plaintiff or the person injured; (2) the actual discovery by the defendant of the perilous situation of the person or property, in time to avert injury, and (3) the failure of defendant thereafter to use ordinary care to avert the injury. All of these elements must concur, else the rule has no application. ’ ’

The plaintiff alleges in her complaint that the members of the [4] engine crew actually saw the boy in a position of imminent peril. The allegation is denied in the answer, and the burden was upon the plaintiff to prove the facts alleged. This she might do by direct or circumstantial evidence. If the view from [5] the cab of the locoiUotive had been unobstructed, it might well be contended that there was sufficient circumstantial evidence to carry the ease to the jury (Doichinoff v. Chicago etc. Ry. Co., 51 Mont. 582, 154 Pac. 924) ; but in view of the fact, conceded by plaintiff, that the tender was between the train crew and the boy, she is compelled to rely upon her own statement that the engineer saw the boy, and upon certain admissions which it is claimed were made by the engineer and fireman at the coroner’s inquest, as the only evidence proving or tending to prove that the engine crew actually saw the boy in his perilous situation.

The mother testified that at the inquest the engineer said: “When I looked behind, the boy was there. I went from fifteen to twenty feet from there;” but she was not able to state positively that the reference was to her boy. Other evidence given at the inquest discloses that the witnesses there testified about other boys who were present in the immediate vicinity at the time of the accident. This isolated statement, apart from the context, stands without explanation, and without any attempt to identify it with the person or time to which it relates. If the reference is to the Lautwe boy, and to the time when the mail clerk directed attention to the accident, or if the reference is to another boy mentioned in the testimony, it coincides substantially with the testimony given by the engineer on this trial. Standing alone, it cannot be said to prove, or tend to prove, that the engineer saw the Lautw'e boy in a place of peril before the accident occurred.

A portion of an answer given by the fireman at the coroner’s inquest was introduced by plaintiff on cross-examination of the fireman. The entire answer, introduced on recross-examinatiom discloses that his testimony before the coroner did not vary in any substantial particular from that given by him upon the trial.

If plaintiff relied upon primary negligence of the engine crew, the evidence that the fireman was warned by the boys on the team track would be pertinent, but under the allegations of the complaint no duty to keep a lookout and discover the boy was imposed upon the trainmen. They are not charged with any negligence, except the failure to avoids injury after they actually discovered his perilous situation. It is alleged that the boy was a trespasser, and to avoid the imputation that his contributory negligence was the proximate cause of his injury it was necessary for plaintiff to allege further, as she did, that the enginemen actually discovered him in a position of imminent peril in time to avoid the injury. There is not any evidence that the fireman actually saw the boy on the track; on the contrary, the only evidence upon the subject is that he did not see him.

The rule prevails in this jurisdiction that, whenever the evidence is in such condition that if the case should be submitted [6] to the jury, and a verdict be returned for plaintiff, it would be the duty of the court to grant a new trial, the court may direct^ a verdict for defendant. (Escallier v. Great Northern Ry. Co., 46 Mont. 238, Ann. Cas. 1914B, 468, 127 Pac. 458; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869.) The rule prevails generally. (38 Cyc. 1563-1565.)

The legal duty to grant a new trial arises whenever the evidence, in weight, does not justify the verdict. (Hamilton v. [7, 8] Monidah Trust, 39 Mont. 269, 102 Pac. 335.) The substance of these two rules is epitomized in our statute. Subdivision 5, section 6714, Revised Codes, provides that the court may dismiss an action or grant a nonsuit upon motion of defendant when upon the trial the plaintiff fails to prove a sufficient ease for the “jury.” Other subdivisions of the same section authorize the court to withdraw a case from the jury if the plaintiff fails to produce any evidence. Subdivision 5 must therefore refer to a case in which the plaintiff-has tendered some evidence in support of the complaint, but the evidence is legally insufficient [9] to sustain a verdict, and this insufficiency may arise from the inherent weakness of the testimony itself.

In Blankman v. Vallejo, 15 Cal. 639, the court said: “We do not understand that the credulity of a court must necessarily correspond with the vigor and positiveness with which a witness swears. A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief.” That language was quoted with approval by this court in Landsman v. Thompson, 9 Mont. 182, 22 Pac. 1148, and in Mattock v. Goughnour, 11 Mont. 265, 28 Pac. 301.

“A witness can testify to those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible.” (Rev. Codes, sec. 7862.) '

The statement of the mother that the engineer “was looking at the boy, and the movements of the boy,” must be considered in the light of the other evidence: That she was too far from the boy to call to him; too far to recognize her own son with his face turned partially from her, although she was present in the yards for the express purpose of looking for him; that the engineer was more than five hundred feet east from her, and eighty feet farther east from her than was the boy; that she took no' account of the fact that the tender was between the engineer and the boy; that from the point where she stood to a point west of where the boy stood the track curves to the south, so that the boy was a considerable distance north of the direct line of vision between her and the engineer; that there was much noise and confusion at the time, occasioned by the incoming train and the movement of the switch engine; that the engineer testified that he did not see the boy; and that five witnesses, each of whom had made experiments, testified that on account of the position of the tender between the engineer and the boy it was impossible from the cab to see a person on the track where the Lautwe boy was standing when the locomotive started. To these circumstances is to he added the fact that, in giving her evidence in chief, she said that the engineer “was looking toward the boy and should have seen the boy, ’ ’ and again that the engineer was “looking up toward me,” and that it was not until she had been recalled to the stand for the fourth time, and after the defendants had completed their case, that she changed her testimony to the direct statement quoted above.

The trial court, with the evidence in this condition and with the added advantage of observing the demeanor of the witnesses on the stand, must have determined that it was impossible for the mother to know whether the engineer could see the boy; that at best the bald statement that he did see the boy was nothing more than the mere guess or conjecture of the witness, without any foundation more substantial than the fact that the engineer was looking in a westerly direction; and that if the case should be submitted to the jury and a verdict for plaintiff returned, it would be legally bound to grant a new trial for insufficiency of the evidence. In Mooré on Facts, section 160, it is said: “Courts are not so deaf to the voice of nature or too blind to the laws of physics that every utterance of a witness in derogation of these laws will be treated as testimony of probative value because of its utterance. A court will treat that as unsaid by a witness which in the very nature of things could not be as said.” (Hook v. Missouri Pac. R. Co., 162 Mo. 569, 63 S. W. 366.)

While it is the rule that, upon motion for a directed verdict [10] in favor of defendant, the evidence- offered by the plaintiff will be considered as proving every material fact which it tends tó prove, still there must be substantial evidence to justify a verdict. Mere suspicions, conjectures, or speculations are not sufficient. (Tudor v. Northern Pac. Ry. Co., 49 Mont. 456, 124 Pac. 276.)

Defendants’ motion for a directed verdict was in effect a [11] demurrer to the evidence. It raised the question of the legal sufficiency of the evidence to establish the fact that the members of the switch engine crew had actually seen the Lautwe boy in a position of imminent peril, or, stated in different terms, it presented to the trial court for determination the question: Could the jury legitimately find from the evidence that any member of the crew had actually seen the boy in his perilous situation? By its ruling the court answered the inquiry in the negative, and we are not prepared to say that the ruling was erroneous.

In this view of the case, it is unnecessary to determine whether the evidence is sufficient to show that the boy survived his injuries for an appreciable length of time.

Plaintiff offered to prove by a witness (Riordan) that in his [12] opinion the engineer from his position in the cab could see a person on the track nine feet from the west end of the tender. Upon objection the offered evidence was excluded, and we think correctly. The witness had not shown himself qualified to give the opinion evidence solicited. Upon this specification of error counsel for appellant contents himself with these brief observations: “The offer of proof by the witness Riordan that the engineer upon the engine, at the place and time in question, was able to see within nine feet behind the west end of the tender attached to the engine, should have been allowed. ’ ’

The judgment entered in this case is in favor of all the [13] defendants. The defendant Williams was not served with summons and did not appear, and therefore there could not have been any adjudication of the case as to him.

The order denying a new trial is affirmed. The cause is remanded to the district court; with directions to modify the judgment by inserting after the word “defendants,” wherever it appears therein, the names of the defendants other than defendant Williams, and, as thus modified, it will stand affirmed. Each party will pay his costs of the appeal.

Modified and affirmed.

Mr. Chief Justice Brantly concurs.