author: MRl COMMISSIONER; CLAYBERG Pee Cuelam.

text:
    TAILLON, Respondent, v. MEARS et al., Appellants.
    (No. 1,693.)
    (Submitted October 19, 1903.
    Decided November 28, 1903.)

      Carriers of Persons for Hire — Injuries to Passengers — Acts of Servant — Scope of Employment — Liability of Master — Degree of Care■ — Instructions—Burden, of Proof.

    1. In an action for injuries by a passenger against a carrier, where the complaint alleges that the injury was the (or a) proximate result of the act of the plaintiff, the burden is on plaintiff to prove actionable negligence on the part of defendant, and want of contributory negligence.

      2. A carrier of persons for hire is liable for injuries to a passenger caused by the negligent acts of his servant, even though the acts complained of were not within the scope of the servant’s employment.
    3. A carrier of persons for hire is responsible for the acts of his servant committed to a passenger, no matter how wrongful, willful, or even malicious they may be.
    4. In an action for injuries to a passenger, it was error to instruct that the carrier covenants that he will insure the safe carriage of passengers, but the court should have charged, on request of defendant, that, while the carrier is charged with the highest degree of care; he is not an insurer of the personal safety of his passengers.
    5. In an action against the proprietor of a stagecoach for injuries to one while a passenger, an instruction that such proprietor covenants that he would insure the safe carriage of passengers by the exercise of extraordinary diligence, and was responsible for any neglect, was error, in that it excluded from the jury the inquiry whether or not the runaway which resulted in the injury was accidental, and could have been avoided by the exercise of the utmost care.
    6. In an action against a stagecoach proprietor for injuries to one while a passenger, it was error to refuse to instruct that, -unless the negligent act complained of was the direct and proximate cause of the runaway which resulted in the injury, plaintiff could not recover.

      Appeal from District Court, Fergus County; Dudley Du Bose, Judge.

    ActioN by Dumas Taillon against J. L. Meaxs and the Judith Stage Company. From an order denying a new trial, defendants appeal.
    Reversed.

      Messrs. Cort & Worden, and Mr. C. B. Nolan, for Appellants.
    The master is not liable for the acts of the servant which are not done in fhe course of his employment. (Walker v. U. & St. J. By. Co., 121 Mo. 584; Shearman & Redfield on Negligence, See. 148; Walton v. N. Y. Cent. Sleeping Car Co., 139 Mass. 556; Smith v. Spitz, 156 Mass. 319; DriscolV'v. Scanlon, 165 Mass. 348; Searle v. Darke, 34 Atl. 744; Smith v. N. Y. Cent. By. Co., 78 Hun. 524; Wyllie v. Palmer, 63 Hun. 8; Brunner v. Am. Tel. Co., 151 Pa. St. 447; Aycrigg v. N. Y. & Erie B. Co., 30 N. J. 460; Adams v. Cast, 62 Md. 264; Mayer v. Thompson, etc. Building Co., 104 Ala. 611; Cincinnati, etc. B. Co. v. Carper, 112 Ind. 26; Beating v. Mich. Cent. B. Co., 97 Mich. 154; Wiltse v. State Bridge Co., 63 Mich. 639; Yates v. Squires, 10 Iowa, 26; Western Tel. Co. v. Mullins, 44 N'eb. 732; Dawkins v. Gulf, etc. B. Co., 77 Tex. 232; International, etc. v. Cooper, 88 Tex.; Pittsburg W. & C. B. Co. v. Mauser, 21 Ohm St. 421; C. B. & Q. B. Co. v. Epperson, 26 Ill. App- 79.)
    It is not sufficient to raise a presumption of negligence on the part of the carrier where an injury is suffered by a passenger while on his journey without any evidence connecting the. carrier with its cause. (Thompson on Trials, Sec. 1690; Dennis v. Pittsburg, etc. B. Co., 165iPa. St. 624; Donovan v. Hartford B. Co., 65: Conn. 201; Yarnell v. Kan. City, etc. B. Co., 113 Mo1. 570; McDonald v. Montgomery B. Co., 110 Ala. 161; Hawkins v. Front St. B. Co., 3 Wash. St. 592; Thomas v. Phil.

      etc. B. Co., 148 Pa. St. 180; Pa. B. Co. v. McKinney, 124 Pa. St. 462.)
    The act of negligence complained of must be the proximate cause of the injury, and the court should have so instructed the jury as requested by the defendant. (Shearman & Pedfield on Negligence (5th Ed.), Sea 25; Thompson on Trials, Sec. 1676; Davis v. Chicago, etc. B. Co., 64 Wis. 326.)
    If the injury complained of was due to accident into which no element of negligence on the part of the defendant entered, no liability existed and the jury should have been so- instructed. (Houston & B. Co. v. Garbell, 49 Tex. 576.)
    The record shows that the plaintiff was acquainted with the road used by the stage line and that the portion of it where the runaway occurred was exceedingly dangerous. Knowing this, he felt that a great risk was incurred in traveling on the stage coach with the horse being led as he was. If the risk incurred in making the journey was imminent he was not at liberty to take his chances, and for any injury that he might sustain under those circumstances he cannot recover. (Cassidy v. Main Cent. B. Co., 76 Mass. 488; Shearman & Pedfield on Negligence, Sec. 92.)

      Mr. B. Von Tobel, and Mr. Lewis Penwell, for Pespondent.
    The question of negligence, was for the jury. (Byan v. Gil-mer, 2 Mont. 517; Tully v. P. W. & B. B. B. Co., 82 Ain. St. Pep>. 425; W. C. 8. B. B. Co. v. Linderman, 79 Am-. St. Pep. 231; Beddington v. Postal Tel. Co., 107 Cal. 317.)
    It must be taken as true that it was negligent to lead the extra horse in the manner stated, as there was no attempt on the part of appellant to prove that it was not so. (Fairchild v. Cal. Stage Co., 13 Cal. 599; Steele v. S. By. Co., 74 Am. St. Pep. 756.)
    The respondent having shown that he was a passenger on appellant’s coach, and that he was injured in an accident caused by the act of appellant’s servant, while engaged in the employment of his master, the case was properly sent to the jury. It devolved upon appellant to> sbow that tbe act complained of was done by tbe servant outside of bis employment. (Bush v. Barnett, 96 Cal. 202; Boyce y. Gal. Stage Go., 25 Oal. 460; Tread-well v. Whittier, 80' Oal. 574.)
    So far as any fact of wbicb respondent could reasonably have been expected to have knowledge, tbe appellant ordered his servant, Murphy, and tbe stock tender, to take tbe horse in the manner be was taken. Tbe facts connected witb tbe taking of tbe borse were peculiarly witbin tbe knowledge of appellant, and equally beyond tbe knowledge of respondent, thus entailing upon appellant tbe duty of proving tbe absence of negligence on bis part. (Fairchild v. Gal. Stage Go., supraj Thompi O'arr. Pass. 211.)
    There is nothing in tbe evidence to warrant an instruction upon tbe question of “unavoidable casualty.” If appellant claims that tbe case colmes witbin tbe rules of law applicable to that class of accidents, it was incumbent upon him to sbow that such was tbe case. (Bush v. Barnett, supra; Boyce v. Cal. Stage Go., supra; Lawrence v. Green, 70 Cal. 417; Treadwell v. Whittier, supra.)

    Contributory negligence, witb few exceptions, is matter of defense. It is matter of defense, except when tbe proximate cause of tbe injury complained of is tbe act relied upon as constituting tbe contributory negligence, such as tbe jumping from tbe coach by tbe respondent in this case. Any more remote act is matter of defense, and should be pleaded in tbe answer. (Higley v. Gilmer et at., 3 Mont. 90; Jamison v. S. J. <& S. G. B. JR. Go., 55 Cal. 593; Pullman P. 0. Go. v. Adams, 74 Am. St. Rep: 53; Plannegan v. Ghesapeake, etc. B. B. Go., 52 Am. St. Repi 896 ■, L. <& N. B. B. Go. v. Markee, 49 Am- St. Rep. 21; The B. B. Go. v. Gladwin, 15 Wall. 401.)
    Tbe phrase, “in tbe course of bis employment,” as applied to a servant’s acts for wbicb it is attempted to' bold tbe principal responsible, does not apply only to such acts as* tbe servant has express direction to: perform, or such only as be may be presumed to have authority to perform. It means anything wbicb tbe servant does in tbe course of bis employment, even tbougb it be an act wbicb be would probably be forbidden to do, were tbe principal acquainted witb all tbe facts; it applies to any act wbicb tbe servant' may reasonably be deemed to bave either express or implied authority to do, in tbe line of bis employment. (Croaker v. C. & N. W. By. Go., 17 Am. Rep. 504; Garretze v. Duenckel, 11 Am. Rep. 405 ; Eckert v. St. L. Trans. Go., 2 Mo. App. 36; N. & G. B. B. Go. v. Starnes, 24 Am. Rep. 296; Redfield on Railways, 511, 513; Bergman v. Hendrick-son, 80 Am. St. Rep. 47; Ware v. B. <& L. Gandí Co., 35 Am. Dee. 189.)
    A carrier is liable for tbe want of competent shill, care and diligence of its servants, to tbe same extent as for a lack of proper appliances, etc. (Memphis & O. B. P. Go. v. McGool, 43 Am:. Rep. 71.)
    When a principal is responsible for a duty, and be delegates it to an agent, if tbe agent fail to perform it, it is immaterial whether tbe failure be accidental or willful, tbe contract of tbe principal is broken. (Croaker v. G. & N. W. B. Go., 17 Am. Rep. 504.)
    Respondent’s continuing bis journey was not tbe proximate cause of bis injury. (B. G. & B. Ditch Co. v. Morrow> 80 Ain. St. Rep. 955 ; T. & F. S. P. B. B. Go. v. Boudrou, 37 Am. Rep. 707; Kline v. O. P. B. B. Go., 37 Cal. 400; Fernandes v. S. G. By. Go., 52 Cal. 45; Meeks v. S. P. B. B. Go., 56 Cal. 513; Filer v. N. Y.- G. B. B. Go., 10 Am]. Rep. 327; Hoffman v. King, 73 Am. St. Rep. 715.; Hollenback v. Dingwell, 16 Mont. 335.)
   MRl COMMISSIONER; CLAYBERG

prepared tbe opinion for tbe court.

This is an action brought by tbe plaintiff to< recover damages against tbe proprietor of a stage line for a personal injury alleged to bave been received by plaintiff while a passenger bn tbe ■ stage, caused by tbe neghgence of tbe defendant.

The allegations of negligence are as follows: “That at the stage station known as 'Campbell’s/ on said road, the defend: ant took with said stagecoach an extra horse, not necessary or nsed to draw said stagecoach, and carelessly and negligently tied, the said extra horse beside one of the horses used in drawing said stagecoach, to lead said extra horse to another stage station on said road; that in ascending Arrow Creek Hill, and at a dangerous portion of said hill, the horses drawing said stagecoach became frightened, by reason of defendant’s negligence and carelessness in so tying said extra horse beside one of said horses in said team, and said team started to run away and became unmanageable.” Plaintiff then alleges, in substance, .that he was in fear of his life, and jumped from the stage; that the injury complained of was the result of the jumping; and that he only did what a reasonable man would have done under the circuln-stanees.

To this complaint the defendant filed an answer denying all its allegations, and alleging “that, if any horse was so taken by any employe of the defendant, it was so taken without defendant’s knowledge and against defendant’s instructions, and was not so taken in the course of the regular employment of the said employe.” To this answer a replication was filed denying the new matter.

Upon the issues thus formed the case was tried with a jury. Plaintiff introduced certain evidence and rested. Defendant moved for a nonsuit, which was overruled. His counsel then announced, “We are willing to rest the case upon the evidence,” whereupon the court instructed the jury, which returned a verdict for plaintiff. A motion for a new trial was- made and overruled, and judgment entered on the verdict. From the order overruling the motion for a new trial, this appeal is prosecuted.

We -do not mean to be understood as holding that the allegations of negligence found in this complaint are sufficient. The case was tried upon the theory that the negligence alleged was the manner of taking along tbe extra horse. No question has been raised as to- the sufficiency! of these allegations, and we have therefore not considered that question.

By the former decisions in this court, under a complaint based upon facts similar to- those involved in this case, the burden was upon plaintiff to prove actionable negligence on the part of the defendant, and want of contributory negligence on the part of plaintiff. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Wall v. Helena Street Ry. Co., 12 Mont. 44, 29 Pac. 721; Nel son v. City of Helena, 16 Mont. 21, 39 Pac. 905; Prosser v. Montana Central Ry. Co., 11 Mont. 372, 43 Pac. 81, 30 L. R. A. 814; Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852.)

The nature and character of proof necessary in this ease is governed by the same rule as is applied to actions of negligence generally- — -that negligence existed, and that the injury complained of was the direct and proximate result of such negligence.

No question of the application of the doctrine of res ipsa loquitur arising in the case, and the rule as to the burden of proof being plain, much of the argument and briefs of counsel in the case become unimportant.

Under the pleadings in the case, defendant could only urge the following defenses: (1) That there was m> actionable negligence ; (2) that there was no injury to plaintiff, or that the injury alleged was not the direct and proximate result of the negligence complained of, and (3) that the plaintiff was guilty of such contributory negligence as to prevent recovery. Under the first defense, defendant might have insisted that the taking along of the extra horse in the manner alleged was not the cause of the runaway of the stage team as alleged, but that it occurred from other causes, such as unavoidable accident beyond the power of defendant to control. In shortj he might have insisted upon anything which tended to> show the absence of actionable negligence. Under the second defense he might have relied upon anything which tended to disclose that there was no injury, or, if any was disclosed, anything which tended to show that such injury was not the direct and proximate result of the negligence alleged. TJnder the third defense he might have relied upon any act of the plaintiff which tended to show the contributory negligence mentioned in the pleadings.

As another defense, defendant relied upon the proposition that the negligent acts charged, if they had any existence, were the acts of his employes performed without his knowledge, against his instructions, and not in the course of the regular employment of such employes. There was no evidence given on the trial in any manner relating to this alleged defense, and the court charged the jury as follows: “The principal is held liable for the negligence and other malfeasance or malfeasances and omissions of, his agent or servant in the course of his employment, although the principal did not authorize or justify, or, indeed, know of, such misconduct, or even if he forbade the acts constituting the negligence. Therefore, in this case, if you. believe that the driver, Murphy, tied the extra horse beside one of the horses used in drawing the said stagecoach, and that that act was negligence, as defined by the court in these instructions, then you must find for the plaintiff, notwithstanding the fact that there is no proof whether the defendant authorized the act on the part of his servant Murphy.” By this charge the jury werp told that the acts of defendant’s servants complained of as constituting negligence were within the scope of the employment. Nothing in the language used, however, in any manner indicates that the court had in mind the question of the liability of the defendant as a carrier of passengers for hire in case the acts of negligence complained of were beyond the scope of the employment.

This was an action by a passenger against a carrier for hire to recov'er for a personal injury caused by the alleged negligence of the carrier’s servants in the course of carriage. The general rule of law is well settled that the master is not responsible for injuries to ai third person caused by the negligence or tort of the servant unless such acts are within the scope of tbe servant’s employment. Counsel for appellant has supported this rule by tbe citation- of abundant authority, but in none of tbe cases cited by him did tbe relation of carrier and passenger exist, and therefore the question above suggested was not adverted) to, discussed or decided in any of such cases.

Does this rule apply in actions like the one under consideration ? This question has not been heretofore considered by this court. In our investigation we were not ¡materially aided by counsel, as this precise question was not raised, argued, or even adverted to, in the briefs filed or arguments made on the hearing. After an examination of the existing authorities, we have concluded that this rule has no application where such third persons are under contract relations — express or implied — with the master, when by such relation a duty devolves upon the master to exercise the highest degree of care for their protection and safety, or where a statute imposes certain duties for their protection.

Our statute charges upon the carrier of passengers for hire certain duties, among which are the following (Section 2190, Civil Code) : “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to> that end a reasonable degree of skill.” This statute is merely de-calratory of the common law as it has existed for many years. A contract of carriage is, in effect, that the carrier, in consideration of the payment of the rate demanded, will use all possible care and diligence in delivering the passenger safely and promptly at the place of destination. The utmost care is contracted for, and, while the carrier is not an insurer of the safety of the passenger, he does guaranty that the passenger shall receive the utmost care, and any failure to provide the same is a breach of his statutory duty, and of the duty imposed by the contract of carriage, and negligence, for which he is liable.

¡From! the nature of the business, the actual transportation of passengers is usually intrusted to servants. These servants, therefore, must be charged with the exercise of the same care toward the passenger as is charged) upon the master under the statutes and tbe contract of carriage; and'it necessarily folloVs tbat any negligence or wrong committed to tbe passenger by tbe servant is a violation of sucb statute and contract, and if injury results therefrom tbe master is liable. Tbe carrier' is bound to do certain acts, and cannot excuse bimself from liability upon tbe ground tbat be bas committed tbeir performance to others. Tbe proper doing of tbe acts by another, appointed by him alone, is just as obligatory and binding upon him as though be undertook to perform themi himself. He is bound to discharge his statutory and contractual obligation to the letter, and, if he commits the performance of these obligations to another, he does so at his own peril. There is no way in which he can shirk or evade their performance. If the servant in such cases does what the master could not do without violating the duties resting upon him, then the master must be held responsible for the acts of the servant, no matter how wrongful, willful or even malicious they may be. Therefore, whenever the (misconduct of the servant causes a breach of the obligation or the violation of the duty of the master, the master is liable for such acts, if injury follow. (Wood on Master and Servant, Sec. 321; Dillingham v. Russell, 78 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Weed v. Panama R. R. Co., 17 N. T. 362, 72 Am. Dec. 474; Stewart v. Brooklyn, etc. R. R. Co., 90 N. Y. 588, 43 Am. Rep 185; Milwaukee & Miss. R. R. Co. v. Finney, 10 Wis. 388.)

This principle is further illustrated and emphasized by cases where the servant of a carrier commits a willful assault upon' a passenger. If such act is a violation of the contract of carriage, a fortiori mere negligence on the part of the servant is sucb a violation. Yet the rule is well established that such an act is a violation of the contract of carriage, and renders the carrier liable. The courts will not allow the carrier to shield himself behind the objection that such act was beyond the scope of the servant’s employment.

One of the leading cases upon this proposition is that of Goddard v. Grand Trunk Ry., 57 Me. 202, 2 Am. Rep. 39, where tbe plaintiff, a, passenger on tbe railroad of defendant, was insulted and assaulted by tbe brakeman on tbe train. Tbe defendants contended that they were not liable because tbe brakeman’s assault upon tbe plaintiff was willful and malicious, and was not directly or impliedly authorized by them. Judge Walton says: “The fallacy of this argumient, when applied to tbe common carrier of passengers, consists in not discriminating between tbe obligation which be is under to bis passenger, and tbe duty which be owes a stranger. It may be true that, if tbe carrier’s servant willfully and maliciously! assaults a stranger, tbe master will not be liable; but tbe law is otherwise when be assaults one of bis master’s passengers. Tbe carrier’s obligation is to carry bis passenger safely and properly, and to treat him respectfully, and, if be intrusts tbe performance of this duty to bis servants, tbe law bolds him responsible for tbe manner in which they execute tbe trust. Tbe law seejms to be now well settled that tbe carrier is obliged to protect bis passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of bis passenger’s safety against every possible source of danger, but be is bound tó use all such reasonable precautions as human judgment and foresight are capable of to make bis passenger’s journey safe and comfortable. He must not only protect bis passenger against tbe violence and insults of strangers' and «^passengers, but a fortiori against tbe violence and insults of bis own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, on tbe contrary, tbe passenger is assaulted and insulted through the negligence or tbe willful misconduct of tbe carrier’s servant, the carrier is necessarily responsible. * * * Tbe grounds of tbe carrier’s liability may be briefly stated thus: Tbe law requires tbe common carrier of passengers to exercise tbe highest degree of care that human judgment and foresight are capable of to make bis passenger’s journey safe. Whoever engages in tbe business impliedly promises that bis passenger shall have this degree of care.- In other words, tbe carrier is conclusively presumed to have promised to do what, under tbe circumstances', the Taw requires him to do. We say ‘conclusively presumed/ for the law will not allow the carrier, by notice or special contract even, to deprive his passenger of this degree of care. If the passenger does not have such care, but, on the contrary, is unlawfully assaulted and insulted by one of the very persons to whom his conveyance is intrusted, the carrier’s implied promise is broken, and his legal duty is left unperformed, and he is necessarily responsible to the passenger for the damages he thereby sustains.”

Another leading case upon this question is that of Craker v. Chicago & N. W. Ry. Co., 36 Wis. 651, 17 Am. Rep. 504. In this case the conductor of a railroad train kissed a female passenger against her will, for which action the passenger brought action for assault. The railroad company] undertook to defend on the ground that the action of the conductor was beyond the scope of his employment, but the company was held liable for damages. Chief Justice Ryan uses the following language in discussing the case: “But we need not pursue the subject. For, however that may be in general, there can be no- doubt of it in those employments in which the agent performs a duty of the principal to third persons-, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail toi perform it, it is immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent; the contract of the principal is equally broken in the negligent disregard or in the malicious violation of the duty of the agent. It would be cheap and superficial morality to allow one owing a duty to another to comimit the performance of his duty to a third, without responsibility for the malicious conduct of the substitute in per-. formance of the duty. If one owe bread to another, and appoint an agent to furnish it, and the agent, of malice, furnish a stone instead, the principal is responsible for the stone and its consequences. In such cases malice is negligence. Courts are generally inclining to this viewj and this court long sihce affirmed it.”

In tbo late case of Birmingham Ry. etc. Co. v. Baird, 130 Ala. 334, 30 South. 456, 89 Am. St. Rep. 43, 54 L. R. A. 752, which was an action for a willful assault upon a passenger by the agents of the carrier, Chief Justice McClellan uses the following language: “There appears to be some divergence of opinion as to a common carrier’s liability for an assault, and the like, committed by its agent upon a passenger when the agent is acting beyond the scope of his employment, in the usual acceptation of that phrase. Of course, the law is well settled that for torts committed by such agents or employes upon persons who are not passengers the employer is not liable, unless the act was, in a sense, in the line of duty imposed by the employment, as where a conductor of a train, being under duty to the railway company, and having authority to eject persons not entitled to carriage, commits^ out of his own malice and personal ill will toward such a person, an unnecessary assault upon him in ejecting him from the train, the wrongful act, though against the express rules and regulations of the carrier, is yet within the scope of the conductor’s employment, and the company would he liable in damages for it; but the reverse would be true — the company w^ould not be liable — if such conductor should assault a person standing by the side of the train, for instance, and having no relations with the carrier, nor in any way encroaching upon the rights of the carrier, for in this latter case the wrongful act of the conductor would have no connection with his duties to the company, and would be entirely beyond the scope of his employment. Such is the law as betw'een trespassers and strangers generally, on the one hand, and the carrier, on the other. But as between the carrier and its passengers an entirely different rule prevails. As to them the contract of carriage imposes upon the carrier the duty not only to carry safely and expeditiously between the termini of the route embraced in the contract, but also the duty to conserve by every reasonable means their conveniencej comfort and peace throughout the journey. And this same duty is, of course, upon the carrier’s agents: They are under the duty of protecting each passenger from avoidable discomfort and fromi insult, from indignities, and from personal violence. And it is not material whence the disturbance of the passenger’s peace and comfort and personal security or safety colmes or is threatened. * * * It is wholly1 inapt and erroneous to apply the doctrine of scope of employment, as ordinarily understood; to such an act. Its only relation to the scope of the servant’s employment rests upon the disregard and violation of a duty imposed by the employment. This is, beyond question, we think, the true, doctrine, on principle; ánd while, as indicated above, there are adjudications against it, the great weight of authority supports it.”

In addition to the above cited authorities, further reference is hereby made to 4 Elliott on Railroads, Sec. 1638; 3 Thompson on Negligence; Richmond, etc. R. R. Co. v. Jefferson, 89 Ga. 554, 32 Am. St. Rep. 87, and note, 90 to 100; Stranahan Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; Stokes v. Salton-stall, 13 Pet. 181, 10 L. Ed. 115; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; Kellow v. Central Iowa Ry. Co. 68 Iowa, 470, 23 N. W. 740, 27 N. W. 466, 56 Am. Rep. 858; Thompson v. Yazoo, etc. R. R. Co., 47 La. Ann. 1107, 17 South. 503; Perez v. New Orleans, etc. R. R. Co., 47 La. Ann. 1391, 17 South. 869; Gallagher v. Bowie, 66 Texas, 265, 17 S. W. 407; Anderson v. Scholey, 114 Ind. 553, 17 N. E. 125; Farish & Co. v. Reigle, 11 Grat. 697, 62 Am. Dec. 666; Stockton v. Frey, 4 Gill, 406, 45 Am. Dec. 138; Sherley v. Billings, 8 Bush. 147, 8 Am. Rep. 451; Bayley v. Manchester, etc. Ry. Co., L. R. 7 C. P. 415; Tuller v. Talbot, 23 Ill. 357, 76 Am. Dec. 695; Derwort v. Loomer, 21 Conn. 245; Roberts v. Johnson, 58 N. Y. 613; Frink & Co. v. Coe, 4 G. Greene, 555, 61 Am. Dec. 141; Gil-lingham v. Ohio Riv. R. R. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R„ A. 798, 29 Am. St. Rep. 827; Chicago & Eastern R. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33; Lakin v. Oregon Pac. R. R. Co., 15 Or. 220, 15 Pac. 641; Pennsylvania R. R. Co. v. Vandiver, 42 Pa. St. 365, 82 Am. Dec. 520; Dwinelle v. New York Central, etc. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; White v. Norfolk, etc. R. R. Co., 115 N. C. 631, 20 S. E. 191, 44 Am. St. Rep. 489; Houston & Texas Cent. R. R. Co. v. Washington (Tex.Civ.App.), 30 S. W. 719; Haver v. Central R. R. Co., 62 N. J. Law, 282, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647.

Tbe court charged the jury as follows: “The proprietor of a stagecoach covenants that he will insure the safe carriage of passengers by the exercise of extraordnary diligence and care, and is responsible for any neglect.” The defendant requested the court to charge the jury as follows: “While the defendant, as a common carrier of passengers, is charged with the highest degree of care in the operation of his line to insure the safe transportation and delivery of his passengers, he is not an insurer of their personal safety; and, if in this instance the runaway was due to unavoidable accident, your verdict should he for the defendant.” The court refused to give this requested instruction, which we think should have been given, as a correct statement of the law.

The language used by the court may have induced the jury to believe that the defendant was an insurer of the safety of plaintiff. The law is well settled that a carrier is not an insurer of the safety of the passenger, but he is. charged with the utmost care and skill which a very prudent and skillful man would use under similar circumstances for his own protection. (Shear-man & Redfield on Negligence, Secs. 494, 495; 3 Thompson on Negligence, Sec. 2721; Story on Bailments, Sec. 601.) Again, this charge excluded from their consideration the inquiry whether or not the runaway complained of was purely accidental, and beyond the power of the defendant or his agents to avoid by the exercise of the utmost care. We think the court erred in this regard.

The defendant also requested the court to instruct the jury as follows: “It is further incumbent upon the plaintiff to show that the taking of this horse along was the direct, proximate cause of the runaway; and, if the plaintiff has failed to show by, a preponderance of the evidence that this was the cause, be cannot recover in tbis action.” Tbis request was also refused, and we do not find in tbe charge to tbe jury, any statement that tbe plaintiff must prove that tbe injury complained of was the direct and proximate result of tbe negligence alleged. Recovery can only be bad where tbe injury is tbe proximate result of tbe negligence alleged and proven. (1 Shearman & Redfield on Negligence (5th Ed.), Sec. 26.)

We therefore advise that tbe order overruling defendant’s motion for a new. trial be reversed, and tbe court below be directed to grant a new trial.

Pee Cuelam.

For tbe reason stated in tbe foregoing opinion, tbe order appealed from is reversed, and tbe cause remanded for a new trial.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BR'ANTLY

license: Public Domain

text:
    STATE ex rel. CITY OF WALKERVILLE, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 2,006.)
    (Submitted November 25, 1903.
    Decided November 30, 1903.)

      New Trial — Settlement of Statement — Writ of Mandate.

    1. A writ of mandate to the district judge to settle a statement and bill of exceptions on motion for a new trial will not issue where the preponderance of the evidence shows that the statement and bill, with the proposed amendments, were not left with the clerk for the judge within the statutory time.
    2. A motion for. a new trial, being a statutory remedy, can only be availed of in the manner, within the * time, and upon the grounds provided in the statute.
    Application on the relation of tbe city of Walkerville for writ of mandate to tbe district court of tbe Second judicial district, Silver Bow county, and EL W. Harney, a judge thereof.
    Denied.

      Mr. Charles O’Donnell, and Messrs. Nolan & Loeb, for delator.

      Mr. John J. Mcitation, for Respondents.
   MR. CHIEF JUSTICE BR'ANTLY

delivered tbe opinion of tbé court.

Application for writ of mandamus to compel El W. Harney, one of the judges of the Second judicial district court, to settle a statement and bill of exceptions on motion for new trial in a cause -wherein Sarah A. Pryor was plaintiff and the relator herein was the defendant. A trial of the cause was had on November 11, 1902, resulting in a verdict in favor of the plaintiff for the sum of $1,500. Judgment was entered in accordance with the verdict for the amount thereof and for costs. On November 18th the defendant served upon the plaintiff and filed with the clerk of the court its notice of intention to move for a new trial. Thereupon an order was made granting the defendant additional time to- that provided by law in which to prepare and serve its statement and bill of exceptions in support of its motion. Within the time so allowed, and on January 28, 1903, the defendant duly served upon the attorneys for the plaintiff its statement and bill. On January 30th the attorneys for the plaintiff served upon the attorney for defendant proposed amendments. These amendments were not adopted.

The relator alleges in the affidavit filed in support of the application that on February 9, 1903, El W. Harney, the judge before whom the cause was tried, not then being ini the county of Silver Bow, its counsel left with the clerk for the judge the proposed statement and bill, together with the proposed amendments, to be presented to> the judge upon his return, for settlement in accordance with the provisions of Subdivisions 2 and 3 of Section 1113 of the Code of Civil Procedure. In his answer to the alternative writ the judge of the district court puts in issue the truth of this statement, and this presents the only controversy involved upon the hearing of this application.

If the statement and bill with the proposed amendments .were left with the clerk for the judge within the time allowed in .the statute, it became the duty of the judge to settle the bill and statement, and make therm part of the record. If they were not presented to the clerk in conformity with the requirements of the statute, the judge was under no obligation to settle them. (Burns v. Napton, 26 Mont. 360, 68 Pac. 17.)

• At the hearing witnesses' were introduced on behalf of the relator and the defendant, the inquiry being as toi what took place in the clerk’s office on February 9th, when counsel for relator claims that he presented the statement and bill, together with the amendments, to, the clerk for the judge. The preponderance of the evidence is decidedly in favor of.the conclusion that counsel for the relator is mistaken in his claim that he presented the proposed amendments of the plaintiff, together with the statement and bill, to' the clerk, and that the amendments were not filed with the clerk until February 21st, when they were filed by counsel for plaintiff. Under this condition of the evidence the application cannot be sustained; for, whatever may be the reason for which the judge refused to settle the statement when the hearing upon the settlement was had on February 28th, the fact that the proposed amendments were not left with the clerk in conformity, with the provisions of the statute is a sufficient reason why this court should not issue the writ. A motion for a new¡ trial is, in this state, a statutory remedy, and can only beinvoked in the manner, within the time, and upon the grounds provided in the statute. The losing party must pursue the requirements of the statute, or else he cannot avail himself of the remedy. (Ogle et al. v. Potter, 24 Mont. 501, 62 Pac. 920.)

The alternative writ heretofore issued herein is set aside, and the application' dismissed, at the cost of the relator.

Dismissed.