Schmidt v. Montana Central Railway Co.

— The questions for determination on this appeal arise on the pleadings, by reason of the trial court sustaining a demurrer to the complaint, on the alleged ground that it fails to state facts sufficient to constitute a cause of action.

The allegations of the complaint, briefly stated, are: That the defendant, Montana Central Railway Company, is a corporation, duly organized, incorporated, and existing pursuant to the laws of this state, and own and operate a line of railway, together with cars, locomotives, etc., thereto belonging, situate in this state; that plaintiff, at the time of the injury complained of, was an emplovee of defendant, engaged in the work of fence-builder along the line of said railroad; that, while thus employed, “it became necessary for plaintiff, under said employment, and under the orders of the foreman of the gang in which he was working, to enter in and upon a handcar, the property of said defendant, and to ride thereon from one point to another upon said line of railway”; that while so proceeding, and riding upon, and helping to propel, said handcar over said line of railway, at a certain point described, *113where said railway passes around a sharp curve, and through a deep cut, “defendant, not regarding its duty toward plaintiff to operate said line of railway and its locomotives and trains thereon in a careful and skillful manner/’ did, by its servants, the engineer and fireman of its locomotive, so carelessly, unskillfully, and negligently run a special train, consisting of locomotive and car or cars thereto attached, through said deep cut and around said sharp curve, at a high rate of speed, toward plaintiff, on the same track upon which he was proceeding on said handcar, without sounding the whistle or ringing the bell of said locomotive, or in any manner warning plaintiff of the approach of said special trail], and by reason of said sharp curve in the line of said railroad, and its passage through said deep cut, plaintiff was unable to see any great distance along the line of said railroad and perceive the approach of said train, whereby plaintiff was brought into and exposed to such great danger and imminent peril of life and limb as to make it unsafe for him to longer remain on said handcar, wherefore plaintiff jumped therefrom in attempting to escape from such dangerous position, and thereby plaintiff received certain serious bodily injuries, particularly alleged, for which he seeks to recover damages. It is further alleged in the complaint that in so jumping from said handcar plain, tiff acted as a reasonable and prudent man would have acted under like circumstances, and that he in no manner, by negligence or carelessness, contributed to the injury for which he seeks to recover damages by this action.

In support of the demurrer respondent’s counsel insist that it is shown by the allegations of the complaint that plaintiff received the injuries for which he seeks to recover damages through the negligence and carelessness of the engineer and fireman of the locomotive drawing said special train; and that said engineer and fireman were fellow-servants of plaintiff, engaged in a common employment by defendant. And they cite the case of Northern Pac. R. R. Co. v. Hambly, 154 U. S. 349, and other authorities, which affirm that an engineer and fireman, in the operation of a railroad train, occupy the relation of fellow-servants with employees of the same company engaged in keeping the railroad line in proper condition. *114In treating the case above cited, however, it is observed that the courts are in hopeless conflict on that as well as other points of application of the doctrine of fellow service, and that “wherever the subject is regulated by statute, of course the statute is applied by the federal courts pursuant to the Revised Statutes, section 241, as a law of the state.”

The general doctrine, as announced through decisions of courts, on the subject of respondeat superior, has been modified somewhat by statute law enacted in this state, following, no doubt, the policy manifested by modern legislation of other states of the American union and of foreign dominions on the same subject. A general exposition of such enactments will be found in the valuable work of Mr. McKinney on Fellow-servants.

The constitution of this state adopted in 1889 provides that: “ It shall be unlawful for any person, company, or corporation to require of its servants or employees, as a condition of their employment or otherwise, any contract or agreement whereby such persons, company, or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employees while in the service of such person, company, or corporation, by reason of the negligence of such person, company, or corporation, or the agents or employees thereof; and such contracts shall be absolutely null and void.” (Const., art. XV, § 16.)

In an act of the legislature relating to railroad corporations it is provided: “ That in every case the liability of a corporation to a servant or employee acting under the orders of 1ns superior shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employee not appointed or controlled by him, as if such servant or employee were a passenger.” (Comp. Stats., div. 5, § 697.)

Plaintiff, in alleging the facts which constitute his cause of action, avers that he was acting and proceeding, when injured, pursuant to the orders of his superior, namely, the foreman whom defendant had set over him to direct his movements in said employment. And, giving the complaint a just and reasonable interpretation, we think that it should be construed as *115alleging that plaintiff, while acting in obedience to the direct order of his superior, and by reason of the default of the defendant, in connection with said order “disregarding its duty toward plaintiff to operate said line of railway, and its locomotives and trains thereon, in a careful manner,” etc., brought plaintiff into the dangerous position alleged, while no signal warned him of the approaching danger, and the circumstances alleged prevented his observing the approach of said train, with the exercise of due care and prudence, whereby — by reason of all these facts conspiring, in connection with the default or wrongful act, or disregard of duty, on the part of defendant, in so ordering the plaintiff, under the circumstances alleged, without due precaution on the part of defendant for his safety — his injury was compassed. And that so viewing the complaint, giving all the averments their proper relation to one another, the demurrer should be overruled. It was proper to allege that there was no sound of whistle or ringing of bell or other signal to warn plaintiff of the approach of said train; for this allegation shows that plaintiff, in proceeding into the dangerous situation, acting in obedience to the command of his superior, did so without warning of the danger coming upon him by the movement of defendant’s train.

The complaint is far from being a model of concise statement of facts constituting the cause of action, without repetition or unnecessary verbiage; nevertheless, it becomes the duty of the court, even though the complaint be inartistic and involved, to give its allegations, when viewed altogether, a reasonable construction.

The judgment of the trial court should therefore be reversed and the case remanded with directions to overrule the demurrer.

Reversed.