Hollenback v. Stone & Webster Engineering Corp.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This is an action for damages for death by wrongful act. The plaintiff, the mother of the deceased, alleges that she is the sole surviving heir at law of John Hollenback, and that at the time of his death, she was altogether dependent upon him for heir support. At the time of the accident John Hollenback, a minor about nineteen years of age, was employed by the defend *567 ant Stone & Webster Engineering Corporation as fireman for a hoisting engine at a time while the dam was being constructed across the Missouri river at Hauser Lake. A large force of men was employed and the work prosecuted continuously. The works and grounds adjacent were lighted, and certain power machinery was driven, by electricity furnished from Canyon Ferry and carried to Hauser Lake over high tension lines to a power-house where it was stepped down to the voltage required. The waters of the Missouri river had been turned from the natural channel through a flume, and on account of seepage and leakage from this flume, the water would continuously rise in the river-bed below the dam at the point where the engine upon which young Hollenback was employed was situated, necessitating the use of force pumps to keep the water out of the way. The pumps were located upon a scow, some'sixty or seventy feet from Hollenback’s engine, and were operated by electrical power. The engine about which Hollenback was employed was partially inclosed in a small frame shed situated immediately below the dam and almost- surrounded by the dam, the river bank and a large pile of dirt. These obstructions so far cut off the light from the engine-shed that it required artificial light, not only during the night-time but late in the morning and early in the evening as well., To meet this demand,.wires were strung from the power-house by way of the pump scow, to the engine-shed and light supplied by means of a cluster of four Tamps. At the point where these wires left the pump scow there was a switch by which the current to the engine-shed could be cut off. These light wires carried 440 volts and led into the engine-shed at the height of six or seven feet above the ground, and a few inches from thé engine-shed doorway. On the night of April 28 the high tension power lines from Canyon Ferry became disabled, resulting in the lights being extinguished and the pumps stopped. As soon as the pumps ceased working, the riverbed about young Hollenback’s engine began to fill with water. When Hollenback reported for work about 7 A. M. of April 29 he found his engine surrounded by water and the water so high in and about the engine-shed that work with the engine was im *568 possible, and the water continued to rise thereafter for some considerable time. Hollenback and Purcell, the day engineer, gathered up some of the tools about the engine and carried them to a place of safety. Purcell then suggested that they wait upon the river bank until they could see Gohrmley, the supervising engineer, and report to him. After waiting some twenty minutes or more, Hollenback started away and in answer to Purcell’s inquiry said that he was going down to the engine. Purcell suggested that it was not necessary, as he could not do anything down there, but Hollenback continued down to the water’s edge, where he constructed a raft, got upon it and made his way toward the engine-shed. When six or seven feet from the shed door he came to the light wires running from the pump scow to 'his engine-shed. These wires were then only eighteen inches or two feet above the surface of the water. Hollenback took hold of one of the wires to pass under it and was electrocuted. Gohrmley, the supervising engineer, was made a party defendant.

The plaintiff charges negligence on the part of defendants in failing to exercise reasonable care to provide young Hollenback with a reasonably safe place in Which to perform his work, and the following particulars aré specified: “(a) Stringing live wires of high voltage - close to the ground where employees would come in contact with the same, (b) Failure to run these wires out of range of employees, as the corporation could and should have done, (e) Using wires that were old and bare of insulation, (d) Failure to shut off the electricity in these bare wires of high voltage at the switch provided for that purpose.”

The defendants admit the employment of deceased and his death, but deny any negligence on their part, and plead contributory negligence on the part of the deceased. The affirmative allegations of - the answer were put in issue by reply. ' The trial of the cause resulted in a verdict and .judgment in favor of plaintiff and against the defendant Stone & Webster Engineering Corporation for $18,000 and costs. From that judgment and an order denying it a new trial, the corporation defendant appealed.

*569 1. It is urged that the complaint does not state facts sufficient [1] to constitute a cause of action, because it does not negative the idea that Hollenback’s death resulted from his own act, and the rule announced in Kennon v. Gilmer, 4 Mont. 433 , 2 Pac. 21 , and reiterated in Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454 , 104 Pac. 543 , is invoked here. In each of those cases the injured party jumped from a moving vehicle, and the injury resulted directly from the act. This court, speaking of a complaint which showed those facts affirmatively, said: “Thus the plaintiff declares that the proximate cause of the injury he sustained was his own action. ” It is the general rule in this state that contributory negligence is a matter of defense, and that “the existence of contributory negligence need not be negatived in the complaint unless it appears from other allegations therein that the proximate cause of the injury was the act of the plaintiff.’.’ (Orient Ins. Co. v. Northern Pac. Ry. Co., 31 Mont. 502 , 78 Pac. 1036 .) The complaint in the present instance charges: “VI. That the said John Hollenback, on the said 29th day of April, 1910, while so working and in the employ of the defendants, came in contact with the said live wire, so negligently and carelessly strung and placed by the defendants, by reason whereof the said John Hollenback was electrocuted.” We do not think that it can be said to appear affirmatively from this allegation that the proximate cause of Hollenback’s injury was his own act, and therefore the case is not within the exception declared in Kennon v. Gilmer and Badovinac v. Northern Pacific Ry. Co., above.

2. Complaint is made that counsel for plaintiff discussed to [2] the jury the effect of certain evidence and argued that the defendants were guilty of negligence with respect to acts not charged in the complaint to be negligent acts. It is sufficient to say that the evidence went in without objection and was before the jury. There was not any request made that it be withdrawn or-its effect limited by instructions.

3. It is claimed that the verdict is excessive. Section 6486, Revised Codes, provides that in a case of this character “such damages may be given as under all the circumstances of the case *570

[3] may be just.” If it is possible from the evidence in this record to account for the amount of the verdict, then this court ought not to interfere. (Yergy v. Helena Light & Ry. Co., 39 Mont. 213 , 18 Ann. Cas. 1201, 102 Pac. 310 ; Helena & Livingston S. & R. Co. v. Lynch, 25 Mont. 497 , 65 Pac. 919 .) Under the statute, the amount of the verdict must of necessity rest in the sound discretion of the jury. The parties are entitled to a verdict from the jury, and it is only in rare instances that the court is justified in interfering, unless the record discloses that the elements of passion and prejudice have influenced the minds of the’ jurors in arriving at the result.

There is not any complaint made of the instructions given which advise the jury'of the measure of plaintiff’s recovery and [4] the circumstances to be considered in arriving at the amount •which in the judgment of the jurors would be just. Assuming, without deciding, that the rules announced in those instructions are correct, the plaintiff was entitled (1) to all the wages of the deceased until he became of age, charged, however, with the burden of his support; and (2) to such proportion of his earnings, after he arrived at 21, as she might reasonably have expected to receive from him during her lifetime. The record discloses that the deceased was a very active, energetic young man, particularly devoted to mechanics, in the pursuit of which he had shown considerable ability; that he already had a stationary engineer’s license and had been intrusted with the running óf a stationary engine for a short time; that he was very ambitious and devoted to his mother, this plaintiff; that since he was thirteen or fourteen years of age he had been earning good wages, and uniformly turning over his earnings to his mother who had supported him. At the time of his death he was receiving three dollars per day as a fireman; and the jurors were fully justified in assuming from all the facts disclosed by the evidence that he would continue to progress in his work as he had done in the past. Based upon the wages he was then receiving and the reasonable probability that he would be able to earn, and would earn, wages equally as good or better during *571 the expectancy of his mother’s life, and the amount written ip. the verdict is not beyond the legitimate limits indicated by the evidence.

4. Was the deceased engaged in the discharge of duties within [5] the scope of his employment at the time he was injured? It is admitted in the answer that he was employed by the defendants as a fireman on April 29, 1910; but it is alleged that at the precise time of his injury he had gone beyond the scope of his employment, that he was not acting under the orders of the defendants, and that in whatever he was doing when injured he was acting as a volunteer, and that it was his own negligence which was the proximate cause of his injury. The general rule of substantive law governing in a case of this character is tersely stated as follows.: “When a servant, of his own accord, and without the direction of his master, steps outside the scope of his employment, whether on the master’s business or on his own, the master owes him no duty as to the dangers he encounters, and is not liable for any injury received.” (Dresser’s Employer’s Liability, see. 104.) While the rule of pleading and practice covering the same subject is aptly stated by the supreme court of Alabama as follows: “To hold an employer liable as such for injury resulting from a breach of such duty, it must appear that the employee was, at the time of the injury, acting within the scope of his employment.” (Southern Ry. Co. v. Guyton, 122 Ala. 231 , 25 South. 34 .)

To attempt to delimit the “scope of employment” by any definite rules of general, application would be a hopeless task. The supreme court of Pennsylvania has said: ‘ ‘ The scope of his [the servant’s] duties is to be defined by what he was employed to perform, and by what, with the knowledge and approval of his employer, he actually did perform-, rather than by the mere verbal designation of his position.” (Rummell v. Dilworth, Porter & Co., 111 Pa. 343 , 2 Atl. 355, 363 .) Of necessity every case must be determined by its own facts. In the present instance the extreme difficulty which confronts us arises from the paucity of facts. That the circumstances were such on April

*572 29, 1910, that young Hollenback could not perform the duties primarily attaching to his position as fireman, and that he was not attempting to do so when he was injured, may be conceded. There is some evidence which tends to show that Hollenback and Purcell did not remove all of the master’s tools and appliances from the engine-shed, but that certain oil cans and a tool-box were floating on the water at the time Hollenback was injured. The water formed a sort of lake surrounding the engine-shed, and on the surface of this water were floating large pieces of driftwood and other debris. It also appears that the engine-shed was open, so that the driftwood or debris might settle on or about the engine, and furthermore that there were portions of the engine ’s machinery and appliances which might have been injured by these floating timbers if they had drifted into the shed. That Hollenback was not merely idling away his time floating upon the water is reasonably certain. He told Purcell that he was going to the engine. He built a raft and was apparently making his way directly to the engine-shed when - he was killed. Just what prompted him to go — what his purpose was — cannot be read from the printed record alone, but it is the rule that “in rendering a verdict the jury are not confined in their determination to the precise language in which the evidence is given, but may find a verdict upon any fair inference dedueible from the evidence.” (Lehane v. Butte Electric Ry. Co., 37 Mont. 564 , 97 Pac. 1038 .)

After much serious reflection we are of the opinion that it is a fair inference from the evidence, viewed in the light of the surrounding circumstances, that young Hollenback was engaged, at the time of his death, in attempting to rescue property belonging to his master — property to which his work was more or less directly related. That Hollenback’s contract of employment as fireman contemplated that he should make every reasonable effort compatible with his own personal safety to rescue his master’s property if in jeopardy, and particularly property related directly to the business of operating the hoisting engine, we do not entertain any doubt. There is some conflict in the *573 authorities upon this subject, but the better reasoned cases and [6] the dictates of common sense support the view that a servant engaged in the rescue of his master’s property in peril is acting within the scope of his employment.

In Moyse v. Northern Pac. Ry. Co., 41 Mont. 272 , 108 Pac, 1062 , we held that the conductor of a freight train while asleep in the caboose after the completion of his run, and while waiting 'to be called to take out a train on the following morning, was in the discharge of his duties, and acting within the scope of his employment. In the note to section 625 of 2 Labatt on Master and Servant, and in Chapter IX of 2 Dresser on Employer’s Liability, will be found many eases indicating the liberality of the courts in treating this subject. In Rees v. Thomas (1889), 1 Q. B. D. 1015, the English court of appeals had before it a case of a fireman employed in a coal mine: In the course of his duty he was required to take a report to the mine company’s office. A horse drawing a truck upon which the fireman rode ran away, and in his efforts to stop the horse the fireman was killed. The court held that the accident arose out of, and in the course of, the fireman’s employment.

In some-of the following cases it is distinctly held to be the duy of an employee to make reasonable efforts to rescue his master’s property in jeopardy, while in others it is held that in making such efforts he is not to be held guilty of contributory negligence. All of the cases in principle support the rule which we have announced above. (Martin v. North Jersey St. Ry. Co., 81 N. J. L. 562, Ann. Cas. 1912D, 212, and note, 80 Atl. 477 ; Terre Saute & I. R. Co. v. Fowler, 154 Ind. 682 , 48 L. R. A. 531, 56 N. E. 228 ; Prophet v. Kemper; 95 Mo. App. 219 , 68 S. W. 956 ; Pegram v. Seaboard Air Line Ry., 139 N. C. 303 , 4 Ann. Cas. 214, and note, 51 S. E. 975 ; Winczewski v. Winona & W. Ry. Co., 80 Minn. 245 , 83 N. W. 159 ;, Pullman Palace Car Co. v. Laack, 143 Ill. 242 , 18 L. R. A. 215, 32 N. E. 285 ; Broderick v. Detroit U. R. S. & D. Co., 56 Mich. 261 , 56 Am. Rep. 382 , 22 N. W. 802 ; Louisville & N. R. Co. v. Seibert’s Admr. (Ky.), 55 S. W: 892; Pennsylvania Co. v. McCaffrey, 139 Ind. *574 430 , 29 L. R. A. 104, 38 N. E. 67 ; 1 Thompson’s Commentaries on the Law of Negligence, sec. 199.) In Maltbie v. Belden, 167 N. Y. 307 , 54 L. R. A. 52, 60 N. E. 645 , the rule which we have announced is affirmed, but it was held in that particular case that the evidence disclosed such negligence on the part of the injured person as to preclude recovery.

Of course the rule just stated cannot be invoked to secure immunity from the charge of contributory negligence. The injured person’s acts in attempting to rescue property are to be viewed' in the same light as his acts in discharging the duties [7] primarily devolving upon him by virtue of his employment. In other words, the question in every case where the defense of contributory negligence is raised must be: Did the injured employee, in attempting to rescue his master’s property, measure up to the standard of ordinary care and prudence?

While our conclusion is that the jury was justified in finding that Hollenback was engaged in the discharge of duties within the scope of his employment at the time he received his injury, we are not to be understood as approving instruction No. 5 given to the jury, to the effect: “If you believe from the evidence that there was no necessity for the deceased to be in- the position in which he was when electrocuted, and that he was not at the time working in the employ of the defendant company, then and in that event the plaintiff cannot recover, and your verdict must be for the defendant.” This instruction was submitted in lieu of one requested by the defendants as follows: “If you believe from the.evidence that the deceased voluntarily, and not at the instance or request of the defendants, or either of them, went upon the surface of the water on a raft, and while there came in contact with the said live wire, then he was not [8] at that time working in the employ of the defendant company, and for injuries so received the plaintiff cannot recover, and your verdict must then be for the defendants.”

In our opinion, the requested instruction was clearly erroneous, while the one given could not have been of much value in enlightening'the jury upon the principal question for deter- *575 mination. But a more specific instruction was not requested, and appellant cannot complain.

The judgment and order are affirmed:

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner con-cur.