Jepsen v. Gallatin Valley Ry. Co.

MB. JUSTICE COOPEB

delivered the opinion of the court.

This is an action to recover damages for personal injuries sustained by the plaintiff while traveling as a passenger on a freight train of the defendant between the stations of Ingomar and Bozeman, in this state.

On July 27, 1916, at Ingomar, the plaintiff loaded a horse into a box-car for shipment to Bozeman. The car was placed in one of the regular freight trains on defendant’s main line. After paying the freight and executing the shipping contract, the plaintiff inquired of the station agent if he would be allowed to ride in the car with the horse on the contract, in response to which the agent stated that he was not entitled to ride on the contract, but could ride in the freight-car with the horse if he bought a ticket or paid cash. Without buying a *131 ticket, the plaintiff hoarded the car in which his horse was being carried. Soon after the train started, the conductor came into the car, and asked plaintiff for his ticket. The plaintiff replied that he had not purchased a ticket, handed the conductor a dollar, and received some small silver in change. Obeying the directions of the conductor, the plaintiff, at Mel-stone, purchased a through passenger ticket to Bozeman, paying $7.35 therefor, returned to the car and continued to ride therein until the train arrived at the station of Three Forks. There the car was set out, the horse fed, watered, and allowed to rest. The conductor -and other trainmen all the way knew the plaintiff was riding in the box-car, and assisted him in watering the horse and also in getting into the box-car at points along the route. The plaintiff, some eight years prior to the trial, had suffered the loss of his right foot, and was wearing an artificial one, although, as he testified, that fact was hardly noticeable. At Three Forks the train was made up for the last leg of the journey to Bozeman, and consisted of nine freight-ears and a caboose. On the order of the conductor, the box-ear containing the horse was placed next to the engine. The plaintiff got into the caboose and the train pulled out of Three Forks. Soon after getting on the way, the conductor took up the plaintiff’s ticket, and informed him that he had closed the door of the box-car because he was afraid the sparks from the engine would set fire to the straw bedding under the horse. According to the plaintiff’s testimony, he told the conductor it would be too warm in the car for the horse with the door closed, responding to which the conductor stated: “The next stop, what is the matter with your going over and opening it up and riding in there with the mare and keeping the fire out of the car?” The conductor’s testimony upon this point is that he asked the plaintiff if it would be too warm in the car for the mare with the door shut, to which the plaintiff replied that he did not think so; that he did not know when the plaintiff left the caboose and entered the box-car, but that a station or two afterward he saw him in there. The day was *132 sultry, and according to the plaintiff’s testimony, when he reached the freight-car the mare was sweating, and her bedding was piled up under her. At Camp Creek station the fireman assisted the plaintiff in watering the mare, the plaintiff remarking to the fireman: “They have got my car next to the engine, and I have to ride in it to keep the fire out.” At the station of West Gallatin the train stopped about fifteen minués to unload freight. In again getting under way, the engin'eer started the engine suddenly, which had the effect of making the drivers slip, and to jerk and jar the car in which the plaintiff was riding so violently that he was thrown against the jamb of the side door of the car, thence on to the floor and under the wheels where the foot of his left leg was crashed, requiring its amputation. The plaintiff characterized the jerk as exceedingly violent—the worst he ever experienced—and stated that in his opinion the cause of the sudden jerking of a train is the taking-up of the slack between the cars and the way the train is handled by the engineer. The members of the train crew differed from the plaintiff as to the cause of the jerking and its effect in this particular instance, stating that the jar in the caboose was slight.

The complaint alleges that the plaintiff was a passenger upon the train, and occupied the freight-car at the instance and request of the defendant, with its full knowledge and consent “and under due authority given him by the defendant and its agents”; that while he was so occupying the car, the defendant, its agents, servants and employees who were actifig in its management, negligently, carelessly and recklessly caused the train and the car the plaintiff was so occupying to be suddenly jerked, jolted, jarred and snubbed up with great and unnecessary, extraordinary, unusual force and violence, throwing the plaintiff from the car on to the ground and under the car-wheels, crushing, mangling and injuring his leg and foot at a point below the ankle, requiring amputation.

The defendant by its answer denied all the charges of negligence upon its part and alleged affirmatively that the plaintiff was a passenger in a restricted and modified sense only; that he *133 was upon the freight train by reason of the fact that he was the owner of the mare then being transported and undertook to feed and water her in transit; that notwithstanding the fact that he had agreed to ride in the caboose attached to the train while in motion, whether at or between stations, and not expose himself to danger by getting on or off moving trains, he unnecessarily and voluntarily, upon the occasion of the stopping of the train at West Gallatin Station on defendant’s road, went forward and rode in the freight-car in which the mare was being carried, without the knowledge of the defendant or any of its agents, in which situation he sustained the injuries complained of. In its second defense, the defendant pleads failure on plaintiff’s part to present his claim for damages within the four months prescribed in the contract, and also the limitation of recovery for injury to his person happening upon its trains, ears, depot grounds - or yards to the sum of $500. The truth of the answer is denied by the replication.

At the close of all the testimony, the defendant moved for a directed verdict, insisting that there was no evidence showing gross negligence on its part or any of its agents, servants or employees, nor any evidence in the record that the defendant, its agents, servants or employees, negligently, carelessly or recklessly caused the train or the car in which the plaintiff was riding to be jerked, jolted or snubbed up, with great, unnecessary, extraordinary or unusual force or violence, causing the injury to plaintiff; that the injury was caused by plaintiff’s own negligence and carelessness; and because the undisputed evidence shows that the plaintiff was the owner and the person in charge of the horse being transported pursuant to the contract of shipment, and that he was injured while in charge of the animal, and that the injury occurred more than four months before the bringing of the action; and for the additional reason that the contract provided that the defendant should not be liable to the owner or person in charge of the horse for injury to his person in an 'amount exceeding $500, and that plaintiff could not recover on the hypothesis that the defendant or its agents, servants or employees were guilty of *134 negligence, gross or ordinary; that the undisputed evidence shows that the plaintiff was injured while riding in the car in which the horse was being shipped, in violation of the eleventh paragraph of the contract of shipment, by which he had agreed to ride in the caboose.

The only errors appellant assigns are the refusal of the district court to direct a verdict in its favor and to grant its motion for a new trial. The grounds upon which it bases its contentions are: (1) There was no evidence of negligence sufficient to sustain the verdict. (2) There was contributory negligence on the part of plaintiff which directly caused his injuries. (3) The plaintiff failed to present his claim for damages within the four-months period limited by the shipping contract. (4) Under paragraph 9 thereof, his recovery is limited to the sum of $500.

Appellant’s argument is that the plaintiff had all the rights of a passenger under his ticket, so long as he remained in the caboose; that he was not a.trespasser while riding in the ear with his horse, but that he was there at the time'of the accident for the purpose of caring for the mare, with the knowledge of the conductor; that while so traveling he occupied the position of a caretaker, being carried free for the purpose of looking after his property, and waived the protection the caboose would have afforded him had he remained there; that by riding in the car he accepted the benefit of the shipping agreement as supplemented by the ^consent of the conductor, and should be bound by its terms.

The first assignment of error impeaches the sufficiency of the evidence of negligence on the part of the defendant. The plaintiff upon the trial testified in.support of all the essential allegations of the complaint and convinced both the trial court upon a motion for a directed verdict and the jury upon the trial that the accident was caused by the negligence of the defendant, and that the plaintiff was not guilty of contributory negligence in riding in the car with the mare. Upon the motion for a new trial, the district court again deemed the evidence sufficient in weight to warrant the verdict, and denied *135 the defendant a new trial. We are bound to respect the verdict of the jury and the judgment of the court in passing upon these matters, unless we conclude that the plaintiff is not entitled to recover as a matter of law. (Previsich v. Butte Electric Ry. Co., 47 Mont. 170 , 131 Pac. 25 ; Monson v. La France Copper Co., 43 Mont. 65 , 114 Pac. 779 .)

It was not necessary for the plaintiff to prove gross negligence upon the part of the defendant. In Neary v. Northern Pac. Ry. Co., 41 Mont. 480 , 110 Pac. 226 , and Kuphal v. Western Montana Flouring Co., 43 Mont. 18 , 114 Pac. 122 , it was held that under an allegation of gross negligence, any lesser degree of negligence might be relied upon for recovery.

The only essential fact disputed in the court below, and which we are now called upon to review, is whether the engineer in starting the train so violently and negligently inflicted upon the plaintiff the injuries he would not otherwise have received. That issue it was the province of the jury to determine upon the conflicting evidence before it. Having reached a verdict, the matter is no longer open to inquiry here. (Mosher v. Sutton’s Theater Co., 48 Mont. 137 , 137 Pac. 534 ; Monson v. La France Copper Co., supra.)

As the record now stands, the only legal question for our consideration is whether the plaintiff was guilty of contributory negligence as a matter of law, in leaving the caboose and riding in the ear with the horse where he was injured. If his position in the box-car was so obviously dangerous and threatening that a reasonably prudent man would have avoided it, he was guilty of contributory negligence in a legal sense, and the verdict cannot be permitted to stand.

The definition of “contributory negligence” given by the supreme court of the United States in Baltimore etc. R. Co. v. Jones, 95 U. S. 439 , 24 L. Ed. 506 [see, also, Rose’s U. S. Notes], was adopted by this court in Birsch v. Citizens’ Elec. Co., 36 Mont. 574 , 93 Pac. 940 , as follows: “Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury *136 as a proximate cause thereof, without which the injury would not have occurred.”' The correct rule, in measuring the [1] sufficiency of the evidence to carry the case to the jury, is the one approved in Gain v. Gold Mountain Min. Go., 27 Mont. 529 , 71 Pac. 1005 , as follows: “No cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had upon any view which could reasonably be drawn from-the facts which the evidence tends to establish.” See, also, Steivart v. Stone & Webster Eng. Co., 44 Mont. 160 , 119 Pac. 568 . Upon motion for a directed verdict, the court should not draw conclusive inferences from the proof against the plaintiff in matters which may be subject to reasonable explanation. It is only where the evidence is undisputed or susceptible of but one conclusion by reasonable men that the court is authorized to take a case away from the jury and render 'judgment. (Milwaukee Land Co. v. Ruesink, 50 Mont. 489 , 148 Pac. 396 ; Birsch v. Citizens’ Elec. Co., supra.) Contributory negligence [2] cannot, as a general rule, resolve itself into a question of law, but must be submitted to the jury as a question of fact. So, if the issue narrows itself to a distinction between what is reasonably safe and what is not so, the question is emphatically one for the jury, (1 Shearman & Redfield on Negligence, 6th ed., sec. 54.)

If the evidence of contributory negligence is not so conclusive as to warrant setting aside a verdict, the question should be left to the jury. (2 Shearman & Redfield on Negligence, sec. 114, pp. 284, 285, and note.) The trial court, after hearing all the evidence and observing the witnesses upon the stand, was unable to say, as a matter of law, that the plaintiff committed a rash or negligent act in riding in ■ the car with the mare, under the circumstances. The plaintiff assumed that position with the knowledge and at the suggestion of the conductor. True, the evidence is- that the plaintiff was a man familiar with the business of railroading, had worked as a fireman and a brakeman for a period of nine years, was familiar with the operation of trains and the cause and effect of their *137 rough handling; yet he had no reason to apprehend that the engineer, knowing his position on the train, would so handle and manage the engine as to subject him to extraordinary and violent jerking and risks not contemplated by him when he entered the box-car. The testimony of all the trainmen was that they knew he was riding in the box-car with the mare next to the engine, and that there was nothing unusual in his riding there. He was not directed to stay in the caboose nor was he advised that any unusual dangers attended his riding in the freight-car. In Mitchell v. Chicago etc. R. Co., 132 Mo. App. 143 , 112 S. W. 291 , the plaintiff while a passenger upon a freight train, was sitting on a box near the open door of the caboose, from which he was knocked down and injured by a violent jolt while the trainmen were making a coupling. The law there stated is applicable to this case. In affirming the judgment, the court used this language: “In the very nature of things, there cannot be the same immunity from peril in traveling upon freight trains as there is in traveling upon passenger trains. Nevertheless, if the carrier accepts passengers on such trains, it thereby assumes toward its patrons an obligation of a high degree of care, precisely as it does when prosecuting its calling of carrying passengers on its regular passenger trains. The measure of care, however, is to be adjusted with respect to the circumstances attending the different modes of carriage and the incidental hazards assumed by passengers on freight trains. The net result with respect to the safety of the passenger may be, and no doubt is, wholly different, because of the inherent hazard incident to the operation of one train and not to the other. It is this hazard which the passenger assumes by taking passage on a freight train, the operation of which he fully knows and understands to be subject to severe jerks and many inconveniences. The carrier is responsible, however, for its negligence in the operation of a freight train precisely as it is in the operation of its passenger train, and in no instance does a passenger assume the hazard and peril arising from the negligence or want of proper care of those in charge of the freight train. (Hedrick v. Missouri Pac. R. Co., 195 Mo. 104 , [6 Ann. *138 Cas. 793], 93 S. W. 268 ; Wait v. Omaha etc. R. Co., 165 Mo. 612 , 65 S. W. 1028 ; Erwin v. Kansas City etc. R. Co., 94 Mo. App. 289 , 68 S. W. 88 ; Hawk v. Chicago etc. R. Co., 130 Mo. App. 658 , 108 S. W. 1119 .)”

The true test in this case is: “ ‘ (1) Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter he is not.’ ” (1 Shearman & Redfield on Negligence, 6th ed., sec. 61, note 10, page 152; Baltimore R. Co. v. Jones, 95 U. S. 439 , 24 L. Ed. 506 [see, also, Rose’s U. S. Notes].)

For other definitions, see Beach on Contributory Negligence, par. 7; Wastl v. Montana etc. Ry. Co., 24 Mont. 159 , 61 Pac. 9 (1900).

The authorities are numerous to the effect that a person is justified in assuming a position on the train to which the conductor assigns him or assents to his taking, unless it is one so obviously dangerous that no prudent man would take it. In Shields v. Minneapolis etc. R. Co., 124 Minn. 330 , 50 L. R. A. (n. s.) 51, 144 N. W. 1093 , it is laid down that “Where an act is done by a passenger upon the invitation, express or implied, of the trainmen, the passenger will not, as a rule, be charged with contributory negligence as a matter of law. ” This view accords with sound reason, and is sustained by a long line of authorities, as will be noted by reference to the following: 10 Corpus Juris (Carriers), p. 1160, notes 91, 92; Northern Pac. Ry. Co. v. Beaton, 64 Fed. 563 , 12 C. C. A. 301 ; Suttle v. Southern R. Co., 150 N. C. 668 , 64 S. E. 778 ; Upham v. Detroit City R. Co., 85 Mich. 12 , 12 L. R. A. 129, 48 N. W. 199 ; Union Ry. Co. v. Shacklett, 19 Ill. App. 145 ; Lake Shore etc. Ry. Co. v. Teeters, 166 Ind. 335 , 5 L. R. A. (n. s.) 425, 77 N. E. 599 ; Dunn v. Grand Trunk Ry. Co., 58 Me. 187 , 4 Am. Rep. 267 ; Lawson v. Chicago etc. Ry. Co., 64 Wis. 447 , 54 Am. *139 Rep. 634 , 24 N. W. 618 ; Szezepanski v. Chicago etc. Ry. Co., 147 Wis. 180 , 132 N. W. 989 ; Chicago etc. Ry. Co. v. Burns (Tex. Civ. App.), 104 S. W. 1081 ; Louisville etc. R. Co. v. Harper, 203 Ala. 398 , 83 South. 142 ; Creed v. Pennsylvania R. Co., 86 Pa. 139 , 27 Am. Rep. 693 ; McGregor v. Great Northern Ry. Co., 31 N. D. 471 , Ann. Cas. 1917E, 141, 154 N. W. 261 ; Missouri etc. R. Co. v. Cook, 12 Tex. Civ. App. 203 , 33 S. W. 669 ; Missouri etc. R. Co. v. Avis, 41 Tex. Civ. App. 72 , 91 S. W. 877 ; Kansas City South. R. Co. v. Clinton, 224 Fed. 896 , 140 C. C. A. 340 ; Gulf etc. R. Co. v. Stewart (Tex. Civ. App.), 164 S. W. 1059 ; Davis v. Iowa Central R. Co., 147 Iowa, 594 , 124 N. W. 753 ; Chicago etc. R. Co., v. Lee, 92 Fed. 318 , 34 C. C. A. 365 ; Stark Electric R. Co. v. Brooks, 94 Ohio St. 324 , 114 N. E. 245 .

The plaintiff, although riding upon a freight train, had all [3, 4] the rights of a passenger, and was entitled to such safeguards as might reasonably be expected on a train of that character. (Shearman & Redfield on Negligence, 6th ed., sec. 513a.) The care to be exercised in the operation and management of freight trains as distinguished from passenger trains differs only in degree, having in mind the jars and jerks necessary in the operation of the former; and, as is said in section 1629, volume 4, of Elliott on Railroads: “While the general rule that the highest practical degree of care must be exercised to protect passengers holds good, the nature of the train and necessary difference in the mode of operation must be considered, and the company is bound to exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of a train of that nature.”

The plaintiff was not there as a trespasser, or wrongfully as between him and the defendant, in view of the forbearance of the conductor, and his being there was not such negligence in a legal sense as would exonerate the defendant for injuring him. (Leasum v. Green Bay etc. R. Co., 138 Wis. 593 , 120 N. W. 510 ; Chicago, B. & Q. R. Co. v. Dickson, 143 Ill. 368 , 32 N. E. 380 ; Arkansas Cent. R. Co. v. Janson, 90 Ark. 494 , 119 S. W. 648 ; Moore v. Saginaw etc. Ry. Co., 115 Mich. 103 , 72 N. W. *140 1112 ; Dunn v. Grand Trunk Ry. Co., 58 Me. 187 , 4 Am. Rep. 267 ; Creed v. Pennsylvania Ry. Co., supra; Galveston etc. Ry. Co. v. Parsley, 6 Tex. Civ. App. 150 , 25 S. W. 64 ; Carroll v. New York & N. H. R. Co., 8 N. Y. Super. Ct. 571; Blackman v. Simmons, 3 Car. & P. 138; Hulsenkamp v. Citizens’ Ry. Co., 37 Mo. 537 , 90 Am. Dec. 399 ; Waterman v. Chicago & A. R. Co., 82 Wis. 634 , 52 N. W. 247, 1136 ; Parks v. Suburban Ry. Co., 178 Mo. 108 , 101 Am. St. Rep. 425 , 77 S. W. 70 ; Mitchell v. Chicago etc. R. Co., 132 Mo. App. 143 , 112 S. W. 291 .)

Upon the whole case as it is presented to us in the record, we are unable to accept the view of the learned counsel for appellant that the ease should have been taken from the jury at either stage of the trial at which motions were made.

The plaintiff insists that his right to recover is based solely [5] upon the relation of passenger and carrier. Appellant’s contention is that—‘ ‘ The fact that there were two agreements— one evidenced by the ticket and the other by the shipping contract—does not preclude it from relying upon the conditions of that agreement which comprehended the situation of the plaintiff at the time and place of injury.” What was the understanding at the time the contracts were made? The undisputed evidence is that the plaintiff signed the shipping agreement, returned it to the station agent, and paid the charges demanded. The contract was then consummated on his part. (Rev. Codes, sec. 5019.) By its terms the relation of carrier and shipper was fixed and determined, and, as it then stood, it contained all the stipulations and agreements relative to the transportation of the horse alone. (Rev. Codes, sec. 5018.) The plaintiff’s testimony is that he asked the station agent if he could ride with the mare on the contract, to which the agent replied, “No,” that is, “just for the mare.” “He said I couldn’t ride with the mare on that contract, but that I could if I paid cash fare; that I would have to pay cash fare or buy a ticket.” (Leasum v. Green Bay etc. R. Co., supra.) The contract itself lends no support to the contention of counsel. The place provided for the signatures of the persons in charge of livestock was never filled out, never signed, and *141 never became a part of either agreement, as will be seen by the photographic copy below:

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Chicago, Milwaukee & St. Paul Railway Co. Butte, Anaconda.& Pacific Railway Co. Gallatin. Valley Railway Co. Idaho Western Railway Co. Tacoma Eastern Railroad Co. White Sulphur Springs & Yellowstone Park Railway Qo.

A. M. Jepsen, Shipper. By A. Sayles, Agent.

Person in Charge of Stock.

FILL IN BLANK SPACES WITH HEAVY INK LINES.

AGENTE ENDORSEMENT FOR RETURN TRANSPORTATION.

To he marked Void hy Forwarding Agent if no return transportation is authorized.

*142 Had the parties stood upon the livestock contract alone, and the plaintiff had paid no passenger fare and had been carried upon the train and in the ear solely in accordance with its provisions, the force of counsel’s argument would be more difficult to avoid.. But the contrary is the fact. The station agent exacted of the plaintiff full passenger fare, and* gave him to understand that he could ride in the freight-car with his mare only if he purchased a ticket or paid cash fare. Thus a separate and distinct contract was made upon which the rights and liabilities of the parties were fixed and upon which they must now be adjudicated. (Leasum v. Green Bay etc. Ry. Co., supra.) In recognition of this, the plaintiff, after boarding the train, paid the cash fare demanded of him by the conductor, and was carried upon it in the car with the mare without protest and with the full knowledge of the conductor and the rest of the train crew. Having demanded of plaintiff, and received of him, full passenger fare for the entire journey, and obligated itself to use the highest degree of care to carry him safely under the conditions presented, the defendant cannot now be permitted to escape the higher obligation assumed, and substitute for it one which was obviously not in the contemplation of the parties at the time of its execution, and so escape liability for an injury the jury has declared to be the result of its negligence, and to which the plaintiff in no wise contributed.

The judgment and order appealed from are affirmed.

Affirmed.