Palmer v. Gt. Northern Ry. Co. , 119 Mont. 68 ( 1946 )

I am unable to concur in the result reached by the majority, which is premised principally upon the proposition that the case falls within the purview of the state Railroad Employers' Liability Act, and especially section 6605, Revised Codes, as follows: "Every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while he is employed by such person or corporation so operating any such railroad, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such person or corporation so operating such railroad, in or about the handling, movement, or operation of any train, engine, or car, on or over such railroad,or by reason of any defect or insufficiency, due to itsnegligence, in its cars, engines, appliances, machinery, track,roadbed, works, boats, wharves, or other equipment." (Emphasis mine.)

As I read the majority opinion, the so-called "safety shoes" which allegedly caused the injury complained of are to be regarded as either "appliances," "machinery," or "equipment" belonging to the defendant railway company, and defective or insufficient due to its negligence. If the provisions of the statute above quoted are not sufficiently broad to include such an item as shoes, purchased by and belonging to the employee, then the conclusion arrived at by the majority is incorrect and unsound. Such, I think, is the case.

It is argued that the former decisions of this court compel a liberal construction of this section. I agree that this is and should be so, and was undoubtedly so intended by the legislature. But a construction of the statute holding its provisions applicable to this case is carrying that principle beyond all reason, and without basis either of precedent or logic. The cited case of Regan v. Montana Logging Company, 53 Mont. 153,162 P. 388, is not authority for any such proposition. There the character of the services being performed by the employee was in question, and the court correctly decided that such services were performed in connection with the operation of trains. This court in applying the principle above alluded to said: "The legislation is remedial in its nature, and its operation ought not to be limited by narrow construction. Doubtless cases will arise to which the statute has no application, and recovery may be had, if at all, only under the limitations of the common-law rule. The service being performed may be so remotely connected with the process of operation that it cannot by any intendment be deemed a part of it. Each case must be determined upon its own facts."

In Morelli v. Great Northern R. Co., 89 Mont. 603,300 P. 210, 211, the question whether goggles were appliances or machinery was suggested by this court, but not directly answered because unnecessary to the decision. It was there said: "The question raised is whether or not `goggles' are `tools and appliances' within the meaning of the general rule, or `appliances, machinery' within the meaning of section 6605, Revised Codes 1921.

"The authorities generally declare the negative, but we need not here decide the question. See Burns v. Delaware [ A. Tel. ] Tel. Co., 70 N.J.L. 745, 59 A. 220, 67 L.R.A. 956; Emerson Brantingham Co. v. Growe, 191 Ind. 564, 133 N.E. 919; Stapleton v. Reading Co., 3 Cir., 26 F.2d 242; Kolbow v. Haynes-Langenburg Co., 318 Mo. 1243, 3 S.W.2d 226; 4 C.J. `Appliances,' 1379."

See also 3 Words and Phrases, Perm. Ed., "Appliance," p. 746.

In this connection it must be remembered that the shoes in question did not belong to the defendant company and were not sold by it to plaintiff, except in the sense that they were distributed by an employee of the railway company for the convenience of its employee. Incidentally, the shoes were not fitted to the plaintiff by defendant's employee, but were selected by plaintiff from the assortment available.

Having arrived at the conclusion that the case falls within the purview of the Railroad Employers' Liability Act, the majority logically should have remanded it for a new trial. Section 6606, Revised Codes, provides: "In all actions hereafter brought against any such person or corporation so operating such railroad, under or by virtue of any of the provisions of this act, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; * * *."

The case was tried on the theory that it did not fall within the Liability Act, but since the majority has held by implication that the court was in error in excluding this theory, a new trial should be had on the proper theory. It is true that the trial court instructed the jury on the contributory negligence rule applicable in common-law negligence actions, but did not instruct the jury as to the law of comparative negligence embodied in section 6606. In view of the fact that the record unquestionably shows contributory negligence on the part of the plaintiff, it is likely that the jury under an instruction on comparative negligence would have returned a smaller verdict. Under the instruction given the jury was faced with returning a verdict for the full amount of the injuries, or none at all. The assertion in the majority opinion that the court's action in instructing the jury on contributory negligence as it did was favorable to defendant is by no means convincing. Even conceding the correctness of the conclusion arrived at by the majority, it seems logical that a new trial should be had in accordance with the theory therein expressed, which is contrary to that adopted by the trial court.

It seems to me that the record indicates conclusively that the plaintiff was guilty of contributory negligence as a matter of law, and that, therefore, under the theory of the trial court the defendant's motion for non-suit should have been granted. The record shows that the plaintiff continued to wear the shoes in question for a period of at least two and one-half months after he discovered that they were too tight and were resulting in increasing injury to his feet. At one time he complained of this to his foreman who told him to return the next day, but he continued to wear the shoes without following up his complaint. It was shown also that during this period he consulted a physician employed by the railroad in connection with other complaints, but did not mention the condition of his feet. Obviously the plaintiff was the only one who could be aware of the condition, and continuing to wear the shoes until his foot became so infected that amputation was required constituted negligence on his part. Such action on the part of plaintiff, it appears to me, was the proximate cause of his injury.

Without encumbering the record further, it is my view that the trial court committed error in permitting evidence of the existence of hammer toes on plaintiff's feet, over defendant's objection, and permitting an amendment of the complaint in that respect. This was a vital point in the case and inconsistent with the facts alleged in the complaint, and amounted to an entire new theory as to the cause of plaintiff's injury.

I further believe that the trial court should have permitted amendment of defendant's answer to include the defense of assumption of risk. Because the granting or refusal of further amendments of pleadings is largely within the discretion of the trial court, refusal of the amendment proposed in this instance by itself probably would not warrant a reversal of the judgment, but the cumulative effect of this and other rulings mentioned resulted in the denial of a fair trial.

I agree that the provisions of the Railroad Employers' Liability Act should be broadly construed in favor of injured workmen, and that doubts as to its applicability should be resolved in their favor, but here the majority has gone far beyond any reasonable construction and beyond the obvious intention of the legislature in the enactment of this legislation. But regardless of my views on this question, this court, to be consistent, should at least remand the cause for a new trial on the theory which the majority has determined to be applicable.