FREEMAN v. CHICAGO, M. & ST. P. RY. of the appellant railway company in conse

Pac. 988; Pierce v. Great Falls & C. Ry. Co., | examination the surgeon dissected the nerve 22 Mont. 445, 56 Pac. 867. If the evidence presented by appellants tended to show the contrary, its utmost effect was to raise a question for the jury. Rev. Codes, § 8028, subd. 2; 3 Thompson on Negligence, § 2773. Some contention is made that the presumption of negligence arising from the derailment is not available to respondent, because he presented evidence tending to show the cause of the derailment. The record does not show that the cause of the derailment was established. Hence the respondent was not, either as a matter of pleading (Hoskins v. Northern Pac. Ry. Co., supra) or as a matter of proof (Cassady v. Old Colony St. Ry., 184 Mass. 156, 68 N. E. 10, 63 L. R. A. 285), deprived of the benefit of the presumption.

from the callous, the purpose being to allow the nerve to regenerate if it would, but the wrist-drop remains and will remain unless something further is done. We think this shows a causal connection between the derailment and the wrist-drop, as well as the minor injuries complained of, and to establish liability for the damages appropriate thereto. True, the evidence does not absolutely exclude the possibility of any other cause of the wristdrop; but courts cannot attain to scientific demonstration, and the rule of absolute exclusion prevailing in criminal cases does not apply to civil actions. "It is sufficient to make out a prima facie case if the plaintiff can show that the injury is more naturally to be attributed to the negligence alleged than to any other cause." Andree v. Anaconda C. Min. Co., 47 Mont. 554, 133 Pac. 1090.

[5] 3. We quite agree with counsel for appellants that, if we ignore the wrist-drop, the damages awarded would be grossly excessive. But the wrist-drop cannot be ignored, for it means the loss of the right hand; unless the respondent can be relieved, he is worse off than if he had suffered amputation. It is argued that this may not be considered, because Dr. Keistler believes that an operation will relieve him. So Dr. Keistler be

[3] 2. The derailment occurred on June 30, 1913, at Harlowton. The injuries imputed to it by the complaint are that the respondent was bruised, shocked, and wounded; that his right arm and right ankle were bruised and broken; that other injuries theretofore sustained by him and from which he was then recovering were greatly aggravated; that his injuries are permanent; and that, because of them, he has sustained great bodily and mental suffering, and is incapacitated for business. The evidence produced in his behalf tends to show these facts: He is a ranch-lieved in October, when an operation was perer, and at the time in question was 52 years old. On the preceding 16th of May he met with an accident which resulted in the breaking of his right arm above the elbow, and a "Pott's fracture" of the right ankle. For these he sought and received such medical treatment that at the time of the derailment he was in a fair way to complete recovery; his arm and ankle giving him no trouble. In the derailment he was thrown bodily against the side of the car, striking against his right elbow, and thereafter his elbow was found to be sore and discolored, his arm hurt, his ankle sprained, his head bruised, he suffered loss of sleep and much pain from both ankle and arm, and two or three weeks later began to lose control of his wrist and hand. This loss of control has since become total, showing an affection of the nerve which supplies the muscles of the forearm, wrist, and hand, creating a form of paralysis known to surgeons as "wrist-drop." The course of this nerve leads close to the elbow, and the condition of wrist-drop could have resulted, and it is reasonably probable that it did result, from the impact of the arm against the side of the car as stated above.

[4] A surgical examination of the respondent in October, 1913, disclosed that the nerve in question had become imbedded in a callous surrounding the point of the old fracture. No such condition was indicated in the middle of June, and was not probable as matters then stood. It could have been caused by excessive motion or too early use of the arm, but there is nothing to show that such was, or probably was, the cause. At the October 154 P.-58

formed for that purpose without result; and he also says: "An operation at this time might produce complete recovery, and it might not." In any case the operation is not a simple one, but a "major operation, one that involves delicate structures and the import of which is more serious." We recognize the rule that an injured person must use ordinary diligence to effect a cure and thus to minimize the damages (Tiggerman v. City of Butte, 44 Mont. 138, 119 Pac. 477; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673); but it would be carrying this rule to an absurd extreme to hold that a man who has submitted to one operation, which failed, must take such chances with his life and his health as may be involved in a second, risking failure in that as well, in order that the damages caused by another's negligence may possibly be reduced (Watson on Damages, § 186; Martin v. Pittsburgh Ry. Co. [Pa.] 86 Atl. 299, 48 L. R. A. [N. S.] 115; Blate v. Third Ave. Ry. Co., 44 App. Div. 163, 60 N. Y. Supp. 732; McNamara v. Railway Co., 133 Mo. App. 645, 114 S. W. 50). So, considering the wrist-drop as well as the minor injuries sustained by the respondent, taking some cognizance of the pain and anguish necessarily entailed thereby, and noting the respondent's expectancy of life and his loss of earning capacity, in connection with the cost of an annuity to recoup the same, we cannot pronounte the award so excessive as to shock the conscience; we do not even think it should be scaled. Lewis v. Northern Pac. Ry. Co., 36 Mont. 207, 92 Pac. 469; White v. Chicago, etc., Ry. Co., 49 Mont. 419, 143 Pac. 561; Mul

lery v. Great Northern Ry. Co., 50 Mont. 408, | 4. Master and Servant 112—Safe PLACE 148 Pac. 323.

4. It is suggested that the verdict is contrary to the court's instructions numbered 6, 7, 12, and 13, and therefore is against law. We find no argument specifically directed to this proposition, but careful consideration of it fails to disclose wherein such contrariety exists.

5. The other assignments of error are procedural, and none of them, in our opinion, command a reversal of this case.

TO WORK-INJURY TO RAILROAD CONDUCTOR -NEGLIGENCE-FAILURE TO FENCE TRACK. The failure of a railroad company to fence its tracks may render it liable for the death of a conductor from the derailment of a car due to collision with a cow on the track.

Servant, Cent. Dig. §§ 212, 213, 218-223; Dec.
[Ed. Note.-For other cases, see Master and
Dig. 112.]

5. MASTER AND SERVANT 286-DEATH OF
RAILROAD CONDUCTOR-FAILURE TO FENCE
TRACK-NEGLIGENCE-QUESTION FOR JURY.
Where, in an action for the death of a rail-

The judgment and order appealed from are road conductor from derailment of a car due to

affirmed.

Affirmed.

collision with cow on track, it appeared that defendant's track was not fenced, that cattle were permitted to run at large, that there was some public domain in the vicinity of the accident and an unobstructed access to defendant's

BRANTLY, C. J., and HOLLOWAY, J., right of way and track, and that cattle frequent

concur.

(51 Mont. 565)

ly came upon the track, and encounters between them and moving trains were not unusual, all of which defendant knew prior to the accident, the question whether defendant's failure to fence for the jury.

ALEXANDER v. GREAT NORTHERN RY. the track constituted actionable negligence was

CO. (No. 3574.)

(Supreme Court of Montana. Jan. 20, 1916.) 1. COMMERCE 27-INTERSTATE COMMERCEFEDERAL EMPLOYERS' LIABILITY АстProof.

Where the allegations of the complaint in an action for death of a railroad conductor from derailment of a car showed that the action was brought under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), proof that the company was engaged and decedent employed in interstate commerce at the time of the accident was indispensable to the right to recover under such act.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. ~27.]

[Ed. Note.-For other cases, see Master and 2. COMMERCE 27-"INTERSTATE COMMERCE" Servant, Cent. Dig. §§ 574-600; Dec. Dig. -FEDERAL EMPLOYERS' LIABILITY ACT-NA- | 217.] TURE OF EMPLOYMENT.

Where a railroad conductor, was killed from derailment of a car while he was in charge of a work train operating over a branch line wholly within the state, and it appeared that his duty with the train was to load ties and take the loaded cars to some convenient siding on the branch line from which they would later be taken by other trains to defendant's tie-treating plant within the state, after which they would be transported and used in construction work on lines within or without the state as they might be needed, decedent was not employed in interstate commerce at the time of the accident, and hence the action was not sustainable under the federal Employers' Liability Act.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. 27.

For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 3. MASTER AND SERVANT 264-INJURY TO SERVANT-PLEADING-RECOVERY.

7. MASTER AND SERVANT 289-DEATH OF CONDUCTOR OF WORK TRAIN-CONTRIBUTORY NEGLIGENCE--QUESTION FOR JURY. Where in an action for the death of a conductor of a work train from derailment of a car due to collision with a cow on the track while the train was being run with the cars in front of, and the tender behind, the engine, at a rate of 10 or 12 miles an hour, the evidence left it in doubt whether there would have been less danger if the tender had been in front, and the cars behind, and whether, if the danger would have been less, decedent knew thereof, and whether it would have been safer to have made the "flying switch" necessary to the transposition, decedent was not chargeable with con

tributory negligence as a matter of law in the selection of the more dangerous of two available methods of running the trains.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092–1132; Dec. Dig. 289.]

8. MASTER AND SERVANT 240-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE — CHOICE OF MORE DANGEROUS WAY.

That the complaint in an action for the death of a railroad conductor from derailment of car declared under the federal Employers' Liability Act did not preclude recovery under While contributory negligence will be imthe state law on sufficient pleadings and proof, .puted as a matter of law to an employé who where defendant, with knowledge of its right, knowingly chooses an obviously dangerous way did not ask for removal of the cause to the fed- of performing his duty, instead of one which is eral court, but, instead, submitted to the state safe, or less dangerous, unless his choice was court's jurisdiction by seeking a dismissal. justified by emergency, contributory negligence [Ed. Note.-For other cases, see Master and will not be imputed merely because of a mistake Servant, Cent. Dig. §§ 861-876; Dec. Dig. in judgment, as appears from after events, where 264.] he made such choice as a reasonably prudent

Appeal from District Court, Flathead leave them at Kila or other convenient sidCounty; J. E. Erickson, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

therewith as to be part of it? Was its perform-, court might be in order. In such a situaance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier?"

Interdependence to some extent pervades all activity, and it is true, for instance, that an interstate railroad cannot perform its functions without fuel or without ties; but this does not justify the inference that persons hired by it to mine coal or to cut ties are employed in interstate commerce. Dela

ware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397; Bravis v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234, 133 C. C. A. 228. In the chain of events by which the standing timber should be connected with the appellant's roadbed the decedent was one step nearer to the latter than

the man who furnished the ties; but considering that the decedent had nothing to do

with the ties further than to load them upon cars, leaving the cars so loaded at convenient sidings to be removed by others, that the

ties so loaded were not to be marketed or used, but were to be taken to Somers and made ready for use, that no one knew when, where or how they would ultimately be used, and that, so far as exigency or duty is shown, the appellant's interstate commerce might go on unaffected whether these ties were gathered or not, the connection of his work with such commerce still appears to have been rather remote. No case has been called to

tion, however, the defendant must assert its right, under penalty of waiver, by filing Powers v. Railway Co., 169 U. S. 92, 18 Sup. a petition to remove at the first opportunity. Ct. 264, 42 L. Ed. 673; Kansas City, etc., Ry. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963; Golden v. Northern Pac. Ry. Co., 39 Mont. 435, 104 Pac. 549, 34 L R. A. (N. S.) 1154, 18 Ann. Cas. 886; Demp335, 96 Pac. 717. This the appellant did not ster v. Oregon Short Line R. R. Co., 37 Mont. do; instead, and with the knowledge of its right to have the cause removed, it submitted to the jurisdiction of the state court in which the trial occurred, by seeking a dismissal for variance as well as for failure to show the breach by it of any legal duty to the decedent under either state or federal

law.

[4, 5] 2. The negligence charged in the complaint is the failure of appellant to fence its track at and near the place where Hall was killed, and thus to exclude cattle, the to cause derailment of its trains, and in perpresence of which upon the track was likely mitting its trains to be run over said track while the same was so unfenced. The questions raised upon the pleadings and the evidence are whether, under any circumstances. a railway company can owe any duty to its train operatives to shield them from whatour attention which in its facts closely re-track may cause, by fencing such track, and, ever danger the presence of cattle upon its sembles the one at bar; but in Illinois C. if so, whether facts sufficient were made to Ry. Co. v. Behrens, 233 U. S. 473, 34 Sup. appear in this case to establish prima facie Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, the existence of such duty. The appellant it was held that employment in interstate vigorously denies that any such duty ever commerce was not shown where the fireman exists, while the respondent contends that of a switch engine operating within the city such duty may exist, and in the present inof New Orleans was killed while moving stance did exist, not in virtue of the fencing cars loaded with intrastate freight, notwith- statute of this state (Rev. Codes, § 4308). standing that his general duties had to do which was enacted for the benefit of stockwith cars of all classes, often commingling owners (Nixon v. Montana, etc., Ry. Co., 50 those loaded with interstate freight and Mont. 95, 145 Pac. 8), but in virtue of appelthose empty or loaded with freight of an lant's common-law obligation to exercise orintrastate character, or rapidly passing from dinary care to furnish its employés with a one class to the other. Accepting this as reasonably safe place in which to work. As authoritative, we are impelled to the view that the decedent was not at the time of his ties are by no means harmonious, but we regards the general proposition, the authorideath employed in interstate commerce, and think the better reasoning supports the respondent's position. Speaking broadly, the not different in principle from those of other obligations of a railway to its employés are masters to their servants, and when the place of work to which the servant is detailed is the track or roadway of the master, the duty to exercise reasonable diligence to keep it safe should and does arise. Indeed, little, if any, difficulty is found in the application of this rule where defects in the track or roadand we cannot see why any should arise way or inanimate obstructions are involved, from the mere fact that the obstruction is

therefore the action was not sustained under the federal Employers' Liability Act.

[3] It does not follow from this however, that the appellant was or is entitled to a reversal. It is now settled that, where the complaint declares under the federal law, failure to sustain it under such law is not fatal, but recovery may still be had under the state law, if the pleadings and proof are sufficient under the state law. Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226; Jones v. C. & O. Ry. Co., 149 Ky. 566, 149 S. W. 951. We recall but one respect in which a defendant can be seriously prejudiced in such a situation, and that is where, by reason of diverse citi

animate.

liable to stray upon it from adjacent fields and "Unless a railway track is fenced, cattle are