O'Neil v. Christian , 60 Mont. 460 ( 1921 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to recover damages for the destruction of personal property. In the complaint it is alleged that plaintiffs owned certain stacks of grain ready to be threshed, and that defendants owned a steam threshing outfit and were employed to thresh for plaintiffs; that at the time the threshing-machine was brought upon plaintiffs’ premises a strong wind was blowing from the southwest; that defendants placed the engine in a southwesterly direction from the separator and grain stacks; that the engine was in charge of an unlicensed and incompetent engineer; that an inferior quality of coal was used in the engine by the defendants; that the engine was of insufficient capacity properly to operate the separator; that the smokestack of the engine was old, worn and perforated with large holes, and, if a spark-arrester was used, it, too, was old, worn and full of holes, and of hn inferior grade and design;, that all of these facts were known to the defendants, or in the exercise of ordinary care should have been known to them; that sparks, lighted embers, and burning coals were emitted from the engine and carried on to the stacks of grain, igniting and burning six of them, of the value of $1,500. Paragraph 8 of the complaint reads as follows: “That the said fire and damage was due to the failure of the defendants to provide a proper and ample steam-engine to propel the said separator with ease and normal pull, and the failure of the said defendants to carefully and properly equip, inspect, and operate, and cause the said engine to be equipped, inspected, and operated in a careful, proper, and prudent manner.”

The answer denies any negligence on the part of the defendants, and attempts, but fails, to plead contributory negligence. The trial resulted in a verdict and judgment for plaintiffs, and defendants appealed from an order denying them a new trial.

[1] 1. The sufficiency of the complaint was challenged by an objeetion to the introduction of any evidence. It is elementary that negligence does not give rise to a cause of action, unless it is. the proximate' cause of injury. (Pure Oil Co. v. Chicago etc. Ry. Co., 56 Mont. 266, 185 Pac. 150), and that, to make out a case, the complaint must disclose, among other things, the causal connection between the acts of negligence alleged and the injury suffered (Stones v. Chicago etc. Ry. Co., 59 Mont. 342, 197 Pac. 252). Counsel for plaintiffs recognize these rules, but insist that they are met by the allegations of paragraph 8 above, or, if not, that plaintiffs bring themselves within the rules, under the interpretation given in Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; that, if the causal connection is necessarily inferred from the facts stated, a specific allegation disclosing the causal connection may be dispensed with. Paragraph 8 is nothing more than a summary of the preceding allegations relating to negligence. It does not add anything to what is theretofore stated, and, if the complaint is not sufficient otherwise, it is not aided by the addition of this paragraph.

[2] We approve the interpretation of the rules first adverted to, as stated in Allen v. Bear Creek Coal Co.; but a casual reading of the complaint involved in that case will disclose the reason for the conclusion reached by this court that it was sufficient. From the facts therein specifically averred, the inference was compelled that the want of timber in room No. 13 caused the loose rock in the roof to fall upon plaintiff, producing the injuries of which complaint was made. But can it be said to be a necessary inference that the fire was emitted from this engine and communicated to the grain stacks, from the fact that the engine was placed in the position which it occupied, or from the fact that the engine was in charge of an unlicensed and incompetent engineer, or from the fact that an inferior quality of coal was used, or from the fact that the engine did not have ample power to properly operate the separator, or from the fact that the smokestack and sparkarrester were defective and full of holes, or from all of these facts combined? Clearly not. Just what relationship any one or all of them bore to the ultimate fact that the fire was emitted from the engine and communicated to the grain does not appear. The objection to the introduction of evidence should have been sustained.

[3] 2. In Ms direct examination, plaintiff O’Neil, testifying in behalf of the plaintiffs, stated that defendant Harry Christian located the engine with reference to the separator and grain stacks. On cross-examination he was asked: “Who caused the engine and separator to be set where they were when the grain was first threshed on your place?” An objection by counsel for plaintiffs was sustained, and defendants thereupon made an offer to prove by the witness that the engine was placed in the position which it occupied by direction of plaintiff O’Neil over the protest and objection of defendant Harry Christian that it was dangerous, on account of the fact that the wind was blowing in the direction from the engine to the grain stacks, and that O’Neil then stated that he would assume all the risk of sparks or fire being blown upon the grain stacks. The offer was refused, and error is predicated upon the ruling. We are unable to understand the theory upon which the trial court proceeded in excluding this evidence. It was proper cross-examination, and if defendants could prove by the witness the facts incorporated in their offer of proof — and for the purposes of this appeal it must be assumed that they could do so — then it would follow that, so far as the particular charge of negligence based upon the position occupied by the engine is concerned, defendants would have been fully exonerated. It is elementary that no one can complain of the consequences of Ms own wrongful act. We do not hold that it was necessary for defendants to make an offer of proof under the circumstances; but, having made it and thereby disclosed the relevancy and materiality of the evidence sought to be adduced, it was error for the court to exclude it.

[4] 3. Over the objection of defendants, the trial court gave instruction No. 10, as follows: “The court further instructs you that it was not incumbent upon the plaintiffs to inspect the defendants’ engine when it was brought upon their premises, and that plaintiffs had a right to assume that defendants had exercised reasonable means and efforts to have the engine pa a reasonably safe condition, combining the greatest safety with practical use.”

The vice of the instruction consists in the addition of the last clause. The measure of defendants’ duty was to exercise ordinary care to provide an engine in a reasonably safe condition and to exercise ordinary care to maintain it in that condition. (29 Cyc. 462.) But it was gross error to instruct the jury that an engine in a reasonably safe condition means one which combines the greatest safety with practical use. Only a machine mechanically perfect could meet this requirement. The giving of this instruction was tantamount to directing a verdict for the plaintiffs. It took from the jury all questions of negligence, and left for determination only the question of damages.

We do not find any merit in the other assignments. For the reasons stated, the order is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.