Domitrovich v. Stone & Webster Engineering Corp.

118 P. 760, 44 Mont. 7, 1911 Mont. LEXIS 71

• Court: Montana Supreme Court
• Decided: October 21, 1911
• Docket: No. 3,007
• Status: Published

Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

Action for damages on account of the alleged negligence of the defendant in causing the death of plaintiff’s intestate. Plaintiff had verdict and judgment. Defendant appeals from the judgment and an order denying its motion for a new trial.

1. The action was originally begun against the appellant and one John Doe, alleged to have been its foreman and superintendent. The appellant is.a corporation, organized and existing under and by virtue of the laws of the state of Massachusetts. John Doe was not served with process and did not appear. After issues of fact were joined between plaintiff and the [1] appellant, the cause came on regularly for trial. The court inquired whether the parties were ready to proceed, whereupon plaintiff’s counsel said, “Plaintiff is ready, — ” when he was interrupted by defendant’s counsel with the remark that he desired to file a petition and bond to remove the case to the federal court. Plaintiff’s counsel, apparently continuing his original statement, said: “But we desire to reduce the amount of damages to $2,000.” The district judge, who was, of course, present and best able to determine the purpose and attitude of plaintiff’s counsel and to properly construe his conduct and judge of his intention, held in effect that he had not concluded his statement, and that what he intended to say, in answer to the court’s inquiry, was that plaintiff was ready for trial, “except that he desired to amend his complaint.” The court thereupon held that defendant’s tender of petition and bond came after plaintiff had asked leave to amend by reducing the amount of damages demanded. The motion to amend was granted, and the cause was retained for trial, after it had been agreed that the petition and bond were sufficient in form and substance to effect a removal, had not the amendment been requested and allowed. It was the province of the district judge to determine the question of fact involved in the controversy, and he having decided that plaintiff’s counsel had not concluded his statement, this court cannot, under the circumstances, interfere with the finding. Counsel for plaintiff had the undoubted right to conclude his statement without interruption by counsel for the other side, and to have a ruling on his motion, and it was conceded at the time of the incident that, if the request to amend was made before the petition and bond were teudered, the court properly retained the cause for trial. We find no error in this action of the court.

2. The complaint alleges: “That the said defendant company and the said John Doe, so acting in its behalf in that regard, negligently failed to make said track reasonably safe for use, and negligently failed to provide in the ties used on said track sufficient ballast and support, and negligently failed to provide a reasonably safe roadbed for said track. That the said Alexander Marsenich [deceased employee of defendant], on said 13th day of March, 1909, so in the usual course of his employment, and while, with others, directing the movement of one of said cars on said track, so loaded as aforesaid, the said car, while moving on said track, on account of the insufficient ballast and support for said ties as aforesaid and on account of said track being unsafe as aforesaid, said rails on said track on which said car was running sagged, by reason whereof the said car jumped the track,’’ and plaintiff was injured.

Deceased, a native of Montenegro, twenty-one years of age, who had been in this country about two years, was engaged with others in loading rock into a dump-car on the banks of the Missouri river, at a point about 20 miles from Helena, where the defendant was engaged in constructing a power dam; their work was to fill the car by hand, then push it out over a track onto the dump, already constructed, into the river, where the rock was thrown into the water for the purpose of making a temporary dam to divert the water into a new channel. As the dump was extended, the track was moved closer to its edge in order to carry the work forward; the track was moved three or four times a day; the ties in some places were three feet apart, and in others six feet apart; they were laid on the rock. One Tom Fee was the foreman or superintendent; he was “bossing the job.” Not anybody was above him in authority. He was the “head man.” Three men were keeping the track in repair. A brother of the deceased testified: “Those fellows were kicking that the track was played out, and Tom Fee he says, ‘Boys, go ahead,’ he say. Alex. Marsenieh was the one that was kicking about the track at the time. It was between 11 and 12 o ’clock that my brother complained, and Fee told him to go ahead. About a quarter to 12 that night, when my brother was injured, we started with the car loaded with rocks. We were running the ear by hand, just holding the car, not pushing, because the track was too much of an incline. The car upset because it got in a hole. That place was not in good condition. The rail was there, but it was not in good condition — not strong enough to support the car. At the time when the pressure came above that hole, the track incline a little bit— went down. After the track went down in that way, the ear upset. When the car upset, that throwed my brother under the rocks.”

Mike Chukish testified: “The last time that we took the trucks down there before Alex was injured, and when we started back with it, there were men repairing the track in the same time exactly as we were working there. When we got over to where these men were, they were raising up the track. When we went by with the trucks at the point where these men were repairing this track, these men went to the side and they let us go by. After we got by with the trucks, these men started in right away again to raise up the track. After the car was loaded (a second time), we went down to the track again — went to dump it. Q. And what, if anything, did Mr. Fee say to them before they started out? A. When the car was stopped, Mr. Fee said, ‘Go ahead.’ We stood there when Mr. Fee made that remark, because we could not take it over. Q. Now, then, when Fee told them, ‘Go ahead,’ and they went ahead, did they get any signal at all from these men repairing the track there to stop? [This question was objected to as calling for testimony not within the issues framed by the pleadings.] A. No, sir; they didn’t give no signal. The ear went off the track. The truck got off the track at the same place where these men were repairing the track. The ear got off the track because the ties were set on the rock. The track was put on the rocks about three feet high. The track kind of sunk there. On both sides of the ties were rocks, and then between is an empty space. There was no rock between — just rock under the ties, the car kind of shaking, both sides, and they couldn’t stop the car, and it upset.”

It is contended that the court erred in allowing the witness to answer the question to which objection was made, as above indicated. It is said that this testimony can only relate to a failure to warn the deceased, which is not a ground of negligence as pleaded. We think the testimony was clearly admissible as being a part of the occurrence as the witness saw it. [2] Whether or not a ground of negligence, predicated upon a failure to warn of danger, could properly be considered by the jury was a matter to be decided upon settlement of the instructions. There is no complaint of the instructions.

3. When the car upset, Marsenich was thrown down by being struck with the rocks with which it was loaded, some of which were so large that it took four men to lift them. He was not able to get up without assistance, was “complaining, trembling and shaking,” and said that “the car kill him.” He was taken to the bank of the river, where he remained about six hours, complaining of suffering, and frequently passing blood through his mouth and with his stools; it was necessary to assist him to his boarding-house; “he couldn’t move; he couldn’t stretch his limbs”; he remained at the boarding-house for two days, and was then taken to a hospital at Helena, where he remained seven days, when he was discharged as “cured of his past illness.” We next find him, a day or two later, in a saloon, “lying against the wall, complaining”; he was taken to a lodging-house, where lie remained two nights, and from there to the county hospital, where he died three days later. The county physician, who had no distinct recollection of the case at the time of the trial, certified in writing that the cause of death was suppurative cholangitis. In order to make the next point clear, we quote from the brief of appellant’s counsel: “It was specifically denied that decedent’s death was caused by the accident; the only [3] proof with reference to his death was that he died of suppurative cholangitis, and that is caused by pus-producing organisms in the 'body; the doctors all agree that it was caused by pus-producing organisms, and that it would not come from external violence. Now, to avoid this, it was attempted to show that the injuries produced lesions or a weakened condition, this making a fruitful field for the germs, and this caused the death. Such testimony was clearly beyond the issues, and no allegation whatever is found which would admit of such proof.” The particular question to which objection was made was propounded to Dr. Barbour by plaintiff’s counsel: “And do I understand, whenever there is a weakening of tissue anywhere, there is a fruitful field for these germs to operate in? A. Why, yes; in a general way. Q. And if there is a breaking of the tissue, or any injury to it, is not that a field where these germs may operate in? A. Yes; that is true.” At the time these questions were answered the plaintiff had not yet offered all of his evidence on the subject, and the matter appears somewhat irrelevant. We think the court properly allowed the questions at the time. Whether the evidence was relevant to the issues depends upon other testimony in the case.

Dr. Kellogg testified: “If there was a lesion there, or an inflammation existing there, and a field for it to work in, then you might have a pus formation there. Now, you take any injury from — it matters not — from any operation, from the removal of an ovary, any trouble where inflammation sets up, where there is peritonitis, that makes a field for these elements to work in, and they do work in it; but without there is a place for them to work, they are neutral, they are negative. For instance,- a lesion or breaking of the tissue, that constitutes a field. It constitutes it in this way: That you have a lesion, and that lesion is caused by traumatism as a rule, or from some injury. That lesion is followed by inflammation. Inflammation is done away with or overcome in two ways. One is by resolution or absorption, which clears up your trouble and you have no more of it. The other is suppuration, and where you have suppuration then you have a field for the germ to work in. Cholangitis is an inflammation of a bile duct, or a series of bile ducts. Injury causing inflammation to these bile ducts would bring about cholangitis. Q. Supposing, as a matter of fact, that a man standing beside a truck loaded with rocks, some of them so large that it would take four men to lift the rock, and that car upset, and some of the rocks strike him in tbe region around here [indicating], and inflicting injuries of such a character that there is a passage of blood through the stool, and also through the mouth; would an injury as serious as that be serious enough to inflict injuries upon these duets that we are speaking of, and so as to cause cholangitis? A. Yes, sir. If I had a patient manifesting those symptoms after an injury, I would know from all reasons that I had a lesion, either of the tissue itself, of the liver structure itself, or of some of those ducts, or else I wouldn’t have the hemorrhage. Then in a case of that kind a man may go on for a good many days with apparently no trouble, and the trouble that follows that is the suppuration that follows the traumatism, the injury, or the seat of the lesion.”

We think the foregoing testimony, including that of Dr. Barbour, was relevant under the pleadings, and competent, and amply sufficient to bring the case within the rule laid down in McAuley v. Casualty Co. of America, 39 Mont. 185, 102 Pac. 586. Under the testimony the jurors were justified in believing that Marsenieh died from suppurative cholangitis, directly traceable to, and naturally caused by, the injuries received at the time the car of rock fell upon him. In the McAuley Case the injured person died from erysipelas, caused by the germs of that disease introduced into her system through an injury to her leg. The jury in the instant case evidently found that Marsenich died from suppurative cholangitis caused by germs, always present in the intestines and introduced into his liver or his gall ducts through lesions caused by the injuries which he received from being struck with the rocks. There is substantial testimony to justify such a finding. We do not consider the testimony of the defendant’s witnesses on the subject, because the jury credited that of plaintiff’s witnesses, as they were at liberty to do.

4. After Miss Peeples, the superintendent o£ the hospital, had testified that Marsenich complained only of pain in his knee, the hospital record of the case, kept by the nurses, was introduced; this record showed that he was suffering from pain, that he groaned once or twice during the first night, that hot fomentations were constantly applied, that he complained of a pain in his hand, that the pain jumped from his left to his right knee, that during the night of March 20 he “did not sleep much, apparently suffering but little pain,” that at times he was apparently suffering no pain, that he had a pain in his left shoulder, that he complained of “pain in his left limb,” also of “pain in shoulder.” Counsel then offered to prove by the witness that, from her experience as a nurse and “from these charts” (meaning the hospital records), she was “able to form an opinion with reference to the character of the suffering endured by the patient, and was able to state that he was not at any time in great or severe pain, and that there was nothing to indicate other than acute articular rheumatism trouble.” The offer was refused, and appellant assigns the ruling as error. The offer [4] was properly refused. The witness had already testified of her own knowledge as to what symptoms of pain were manifested when she saw the patient. The charts speak for themselves. No expert could enlarge or circumscribe the meaning of the plain English words therein contained. The latter part of the offer was incompetent. Miss Peeples had not qualified as a physician, able to diagnose the particular disease from which the patient suffered.

5. It is urged that the deceased assumed the risk-of being injured as he was. We cannot say so, as a matter of law. It was a question for the jury to determine. Defendant had undertaken to keep the track in repair. Deceased had nothing to do with that work. He was not engaged in making the place in which he was injured. It was defendant’s duty to exercise ordinary care to, furnish him a reasonably safe track for the dump-car to pass over. The piece of track in question had just been repaired. Fee was there, in full authority, representing the defendant corporation. It does not appear as a matter of law that the danger was so obvious that deceased must be presumed to have appreciated it. He had .a right to presume that the track was reasonably safe when ordered by Fee to go ahead, and it was his duty to instantly obey, unless the danger was known to and appreciated by [5] him, or was so obvious that all reasonable men would agree that he must have appreciated it. We find no such condition here. The matter was properly submitted to the jury, and the motion for a new trial, so far as this point is concerned, was properly overruled. (Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273; Allen v. Bell, 32 Mont. 69, 79 Pac. 582; Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619; Hill v. Nelson Goal Co., 40 Mont. 1, 104 Pac. 876; O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724; Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499.)

It is said that deceased came to his death by reason of the negligence of fellow-servants, the track repairers. We do not place the same construction upon the testimony relating to this branch of the ease as do appellant’s counsel. We believe the evidence fairly shows that deceased was simply engaged in dumping rock into the river for the purpose of making a temporary dam, and that the keeping of the track on the dump in repair was an altogether different portion of the general work which was being prosecuted by the defendant. The duty of [6] making the track reasonably safe rested primarily upon the defendant, and could not be delegated to others, so as to avoid liability for their negligence. (Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755.) We think, moreover, that the jury would have been justified in finding that the overturning of the car was caused, not by any negligence of the trackmen, but on account of the fact that [7] the ties were simply laid upon the rock and were too far apart; in other words, by the negligence of the defendant in pursuing its general plan of operations. (See Eeraert v. Eureka Lumber Co., 43 Mont. 517, 117 Pac. 1060.)

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.