them may be deduced the conclusion stated by the annotator of Stenvog v. Minnesota Transfer Ry. Co., supra, 108 Minn. 199, 121 N. W. 903, 25 L. R. A. (N. S.) 362, 17 Ann. Cas. 240: "The lifting of heavy objects involves no perils that are not obvious to any person of common understanding; hence an employé who undertakes to lift or assist in lifting a heavy object assumes the risk of injury due to the task being too great for his strength, and in case injury results he is not entitled to recover damages from his employer." The rule is thus stated by Mr. White in his work on Personal Injuries on Railroads: "It is quite generally held that when an employé is injured from lifting at a car, or a steel rail, or any similarly heavy substance, where the weight of the object attempted to be lifted is a matter of common knowledge and the number of men that it takes to handle it is well known by the employé, the risk of such an injury, is assumed as an incident of the employment.' Section 339. Cases like the foregoing may be classed as "strain cases," in that the injury complained of is internal and is the result of overtaxation by the injured employé. Cases frequently arise in which the injury is external, as merits. On the question of assumption of risk the Supreme Court said: son that the plaintiff assumed the risk as an incident to the employment, and thus absolved the defendant from liability. This general rule has been held not to apply, however, where the servant is a person of immature years and sustains the injury while under the direction of his superior. Sherman v. Texas, etc., Ry. Co., 99 Tex. 571, 91 S. W. 561. In this case a young man 17 years old, a machinist helper in defendant's shops, sustained internal injuries in lifting a heavy piece of iron. He was well grown and had been at work in defendant's employment about 3 months. During that time he had been called two or three times to assist in lifting and placing heavy pieces of iron upon a lathe. On this occasion he had been called and deputed by the foreman to assist the operative of a lathe to put a heavy piece of iron upon his lathe. He acted as required by the foreman under the direction of the operative, and in lifting one end of the iron overtaxed his strength and was injured. In Court of Appeals reversed it and ordered the trial court plaintiff had judgment. The judgment for defendant. The Supreme Court the crushing of a hand or foot of an employé peals and remanded the case for trial on the disapproved the judgment of the Court of Apbecause his strength, combined with that of his assistants, is not sufficient to safely handle the heavy object. The latter are usually cited as based upon the same principle as the former. Of this class are Southern Kansas Ry. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; White v. Owasso Sugar Co., 149 Mich. 473, 112 N. W. 1125; Freeman Brewing Co. v. Hansen, 65 Neb. 456, 91 N. W. 279, 93 N. W. 211. All of these cases proceed upon the theory, either that such injuries arise from hazards ordinarily incident to the particular business, or that the hazard is so open and obvious that the injured employé assumes the risk. The case of Verlinda v. Stone & Webster E. Corp, supra, is assignable to still a different class, in that the injury there complained of was caused by the inability of an employé to handle, without assistance, a heavy chain attached to a boom by a hook, and for this reason it got away from him, and, falling from the hook, injured another employé who was engaged upon a distinct W. 808, the plaintiff was a man 56 years of part of the work. It is not pertinent to this case except in so far as it announces the general rule that it is the duty of the master to provide a sufficient number of servants to perform the work in hand with reasonable safety. In other words, "when the work requires men to do it, the men engaged therein are classed as appliances" (Haviland v. Kansas City, etc., R. Co., supra), and the verdict for the defendant. The Court of Civil general rule as to defects in appliances furnished by the master controls. If we should follow the path of authority as defined in the other cases cited supra, we would be compelled to the conclusion that the plaintiff cannot recover in this case, either upon the allegations of his complaint or the evidence adduced in support of them, and this, for the rea the minor George Sherman, could, by inspection "It cannot be said, as a matter of law, that of the piece of iron, tell whether it was too heavy for him to lift, and that he was capable of understanding the danger attending the lifting of the iron. Indeed, the only way that he could decide the question was to do as he didobey the command of his superior and make the attempt. But in that experiment, when he learned that the iron was too heavy-for him to lift, the injury had been inflicted." In its ultimate analysis this statement, it seems to us, is nothing more than a concrete application of the doctrine of assumption of risk as declared by this court in McCabe v. Great Northern Ry. Co., supra, and the other cases cited, viz.: That when the employé knows and appreciates a danger brought about by defective appliances or an unsafe condition of the place of his work, he assumes the risk, but not otherwise. In Bonn v. Galveston, H. & S. A. Ry. (Tex. Civ. App.) 82 S. age, an experienced section hand, though he had not been accustomed to handle rails. He was directed by his foreman to assist in carrying a rail over a ditch. As this was being done, one of the men in the crew slipped, throwing the excessive weight upon the plaintiff, which caused a strain resulting in a rupture. The trial court directed a Appeals reversed the judgment, holding that the evidence presented a case for the jury. A second trial resulted in a verdict and judgment for the plaintiff. In 44 Tex. Civ. App. 631, 99 S. W. 413, the court refused a writ of error, holding that the evidence was sufficient to sustain the verdict. In Illinois C. Ry. Co. v. Langan, 116 Ky. time, is not different from that in which he is working in the presence of his superior and under his direction, but without spoken order. He is under the same obligation not to stop and question and decide for himself in the one case as in the other, unless, as we have said, the hazard is so obvious that, as a reasonably prudent person, he must have understood and appreciated it. The presence and general direction of his superior implies an order for everything done. [4-6] Applying these principles to the pres 318, 76 S. W. 32, the facts were these: The plaintiff was a freight handler. He and three others were directed by the freight clerk to unload steel shafts from a freight car to the freight platform, the shafts weighing from 200 to 460 pounds. The larger ones were 5 or 6 inches in diameter, 20 feet long, were round, and had been oiled or greased. The crew having moved several of the smaller shafts, requested the clerk to obtain assistance for the moving of the larger ones, stating that they could not move them with safety. The clerk, having failed to get addition-ent case, we conclude that the complaint al men, told the crew to go on with the work. states a prima facie case, and that the eviWhile they were attempting to handle one of dence made a case for the jury. It is true the larger shafts it slipped and fell on plain- that actual ignorance of the particular risk tiff's foot, crushing it. The court held that will not relieve the servant; that his ignoa verdict for the plaintiff was proper. Though rance must be excusable; that he is bound to in the case of Sherman v. Texas, etc., Ry. use his senses and cannot allege ignorance of Co., supra, the immature years of the plain-| a hazard which is obvious to any one of ortiff was, in the estimation of the court, apparently a decisive factor, it seems to us that the important consideration is the experience of the employé in the same kind of work, though immaturity of years is a pertinent fact in determining his capacity to judge correctly. [2, 3] Nor do we think that it is a decisive factor that the employé did the act resulting in his injury in obedience to an express order of the superior given at the time. If the employé is acting in the line of his duty, he is acting in obedience to the orders of his superior whether the superior is present or absent. It is the right of the master, as well as his duty, to give orders. The duty of the employé is to yield obedience unless it is obvious that obedience will expose him to unusual dangers. If the employé should stop to make tests and conduct experiments to determine for himself whether he can safely obey his orders, it would be impossible to accomplish any kind of enterprise. Therefore the employé has the right to assume that the master has used due diligence to perform all the primary duties incumbent upon him when he assigns a duty to be performed. MeCabe v. Montana Cent. Ry. Co., supra. On this subject, in Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 210, Mr. Justice Cooley said: "It is true the master had no right to direct him [the servant] to do anything not contemplated in the employment, but when one thus contracts to submit himself to the orders of another, there must be some presumption that the orders he receives are lawful, the giving of the orders being of itself an assumption that they are lawful; and the servant who refused to obey would take upon himself the burden of showing a lawful reason for the refusal. This of itself is sufficient reason for excusing the servant who declines the responsibility in any case in which doubts can possibly exist; he should assume that the order is given in good faith and in the belief that it is rightful; and if in his own judgment it is unwarranted, it is not for the master to insist that the servant was in the wrong in not refusing obedience." The case where the employé is at work un dinary intelligence and understanding; and that though he does not appreciate the extent of the hazard or does not know precisely the injury he may incur, the risk is his (Bailey on Personal Injuries [2d Ed.] § 376; Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884); yet if the hazard requires knowledge or judgment not possessed by men of ordinary observation, the servant does not, as a matter of law, assume the risk (Bailey on Personal Injuries, § 376, supra). The allegations of the complaint bring the case within the principle of Coleman v. Perry, 28 Mont. 1, 72 Pac. 42, and Killeen v. BarnesKing Dev. Co., 46 Mont. 212, 127 Pac. 89, rather than within the rule of Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973, Fotheringill v. Washoe C. Co., 43 Mont. 485, 117 Pac. 86, and Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809, upon which latter counsel rely, viz., the facts alleged do not as a matter of law disclose that plaintiff assumed the risk. As we view it, the evidence presented a case calling for the judgment of the jury. Neither the plaintiff nor any other witness stated that the men engaged in the work were not sufficient to safely handle the rails. Counsel took the position at the trial that the evidence offered on this point by plaintiff was incompetent, insisting that the number of men required to lift a heavy object such as a steel rail was a matter of common knowledge. The testimony of the plaintiff discloses the number and the apparent physical condition of the men employed and the character of the work. The jury determined that the number of men was not sufficient, thus convicting the defendant of negligence. Of the result in this behalf counsel do not and cannot justly complain. [7] Assuming, then, that the defendant was at fault, was this fault the proximate cause of plaintiff's injury? The causal relation between the fault and the injury is shown, we think, by the implied direction of the fore The judgment and order are affirmed. plaintiff had the right to presume that heter and Servant, § 1107. The obligation is might safely act under the direction of the not relaxed at any time; nor is the master foreman, and the injury presumptively result-excusable for any negligence in this behalf. ed from error in the judgment of the foreman except by the servant himself who knowingly in estimating the capacity of the men, includ- assumes the increased risk. ing the plaintiff, rather than from error in the judgment of the plaintiff, inexperienced as he was in doing the particular kind of work. It being the duty of the defendant to provide a suitable number of servants in the first place, it was primarily the judge as to whether it had met this duty, and the implied direction to the plaintiff to proceed was, under the circumstances, the proximate cause of the injury. SANNER and HOLLOWAY, JJ., concur. (53 Mont. 302) SCHEFFER v. CHICAGO, M. & P. S. RY. CO. (No. 3733.) (Supreme Court of Montana. Feb. 23, 1917.) 1. RAILROADS 412(1)—KILLING ANIMALS— FAILURE TO MAINTAIN FENCE-ABSOLUTE LIABILITY. [8] It may not be presumed as a matter of law that the plaintiff, though reared on a farm, had gained appreciative knowledge Under Civ. Code 1895, § 950 (Rev. Codes, § that the weight of the rail was beyond the 4308), requiring a railroad company to make capacity of the three men, from the fact that and maintain a good and sufficient fence on four men a short time before had lifted an- each side of its tracks, and, in case of failure to other rail of the same size and weight. The domestic animal killed or injured by its trains, do so, declaring it liable to the owner for any situation was then different. When, there- unless the accident occurs through neglect of fore, he came to lift the second rail, the the animal's owner, there is an absolute duty burden was not upon him to refuse to pro- of negligence; the section being otherwise meanof maintenance, requiring no allegation of proof ceed with the smaller number of men, as ingless in view of section 951, declaring a railagainst the alternative of assuming the risk road company liable for the damages which negof such injury as he might suffer. The evi-ligently injures or kills a domestic animal by dence as a whole made a case from which running engine or cars over or against it, and declaring the killing or injury prima facie evireasonable men might draw different infer-dence of negligence. ences, and this called for the judgment of the jury. In drawing therefrom an inference favorable to the plaintiff, they were within their legitimate province, and their conclusion we may not overturn. Counsel contend that the verdict is contrary to instructions 6 and 7, and hence is contrary to law. In these instructions the court properly submitted to the jury the question whether the plaintiff assumed the risk under the circumstances disclosed by the evidence. They insist that inasmuch as it appears that the plaintiff assisted in lifting the first rail, and later assisted in lifting the second without objection or protest, it appeared conclusively that he assumed the risk. Upon this evidence, they say, the finding of the jury could not have been in favor of the plaintiff. As already pointed out, the evidence made a case for the jury upon the issue of assumption of risk; and since they were at liberty to find either way, their finding was not contrary to law. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1451, 1452.] 2. RAILROADS 413(4)-KILLING ANIMALSKEEPING GATE CLOSED-“FENCE.' A gate constructed for the convenience of the landowner by a railroad in its right of way fence is part of the "fence," absolute duty to keep which closed is imposed on the company by Civ. Code 1895, § 950 (Rev. Codes, § 4308), requiring it to maintain a good and sufficient fence, and, in case of failure to do so, declaring it liable to the owner of domestic animals killed or through the owner's negligence. injured by its trains, unless the accident occurs [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1465. For other definitions, see Words and Phrases, 58-ESSENTIAL PREJUDICE TO That plaintiff may be estopped by anything he said or did, defendant must have been misled thereby to his injury. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 144, 145.] Appeal from District Court, Missoula County; John E. Patterson, Judge. Action by Peter Scheffer against the Chicago, Milwaukee & Puget Sound Railway Company. From an adverse judgment and order, defendant appeals. Affirmed. Henry C. Stiff, of Missoula, for appellant. A. J. Violette, of Missoula, for respondent. [9] In instruction No. 4 the court told the jury that it is the duty of the master to exercise ordinary care to assign an adequate number of servants to each particular piece of work, that the work may be done with safety to themselves. Counsel contend that this cast too great a burden upon the defendant. As we understand the rule defining the pri- HOLLOWAY, J. The defendant company's mary duties of the master as to safe appli- railroad runs west from Huson, Mont., and ances, etc., it requires him not only to pro- immediately north of the residence of Dolvide them in the first place, but to maintain phis Tetreault. The railroad right of way them during the progress of the work, and was fenced on both sides, thereby cutting off each particular part of it. 3 Labatt on Mas-access from Tetreault's residence to the pub For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lic road. To accommodate Tetreault, the rail-good and sufficient fence prima facie eviway company constructed a private grade dence of negligence only, the lawmakers crossing and a gate in its right of way chose very inapt language to express their fence on either side. One of these gates meaning. They experienced no difficulty in was left open by some unknown person, and expressing the idea in section 951. plaintiff's cattle wandered through onto the railroad track, and some were killed and others injured. Plaintiff recovered a judgment in the lower court, and the railway company appeals therefrom and from an order denying its motion for a new trial. [1] 1. The principal question presented is: May plaintiff maintain his judgment upon the facts stated? Or, stated differently, is it necessary for plaintiff to allege and prove that the railway company knew the gate was open, or that it was open for such a length of time that notice may be imputed to it? In 1891, the Legislature enacted a statute which required every railway company operating in this state to fence its tracks against domestic animals (Laws 1891, p. 267), or respond in damages for any such animals killed or injured by reason of the want of such fence. In Beckstead v. Montana U. R. R. Co., 19 Mont. 147, 47 Pac. 795, it was said that this statute was substantially the same as one in Iowa, and under the Iowa statute it had been held that, after complying with its terms in the first instance, the railroad company could be held only to the exercise of reasonable care to keep the fencing in repair and gates and bars closed. Henderson v. Chicago, R. I. & P. R. Co., 43 Iowa, 620. In 1895, the Codes were adopted. Section 950, Civil Code, required every railroad corporation operating in this state to make and maintain a good and sufficient fence on both sides of its tracks, and, in case any such corporation did not do so, it should be liable to the owner for any domestic animal killed or injured by its trains unless the accident occurred through the fault or neglect of the owner of the animal. At the same time section 951 was enacted, as follows: "Every railroad corporation or company operating any railroad, or branch thereof, within the limits of this state, which shall negligently injure or kill any horse, mare, gelding, filly, jack, jenny, or mule, or any cow, heifer, bull, ox, steer, or calf, or any other domestic animal, by running any engine or engines, car or cars, over or against any such animal, shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof. The killing or injury shall be prima facie evidence of negligence on the part of such corporation or company." This section declares the rule of reasonable care and renders a railroad corporation liable for negligence in killing or injuring domestic animals without reference to the place where the accident occurs. If it was intended to require proof of negligence in an action brought under section 950, that section is meaningless, for the next section covers the subject more fully. If it was intend In construing a statute we are required to give to the words employed their ordinary meaning, unless it is made apparent from their character or the context or subject that a different meaning was intended. State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103; State ex rel. Gillett v. Cronin, 41 Mont. 293, 109 Pac. 144. If the language is plain, simple, direct, and unambiguous, it does not call for construction by the courts. It construes itself. Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499. Applying these rules in the light of the provisions of section 951, and it is apparent that it was the intention of the Legislature in enacting section 950 to change the rule of liability theretofore recognized and applied, and to require a railroad company at its peril to make and maintain a good and sufficient fence on both sides of its tracks or respond in damages for domestic animals killed or injured by reason of its failure to do so, unless the owner of the animals is at fault. statute is not satisfied by the construction of a fence sufficient to meet its requirements. The continuing obligation is imposed to maintain such fence in a condition to effectuate the purpose intended. With certain amendments not involved here, sections 950 and 951 were brought forward into the Codes of 1907 as sections 4308 and 4309, respectively, and state the law upon the subject to-day. The [2] The gate in question was a part of the right of way fence. The statute imposed upon the railway company the duty to see that it was kept closed (Wabash Ry. Co. v. Williamson, 104 Ind. 154, 3 N. E. 814), and the failure to keep it closed was negligence per se. It was not necessary to allege or prove that the company knew, or in the exercise of reasonable care should have known, that the gate was left open. If the rule is a harsh one, relief from its operation must be sought in the Legislature. We have given to the language of section 4308 (section 950, Civil Code) the only meaning of which it is apparently susceptible. It is not necessary to determine whether plaintiff must negative fault on his part, or whether the negligence of the plaintiff is an affirmative defense; for in this instance the plaintiff assumed and maintained the burden in his pleading and proof. [3] 2. Some contention is made that the plaintiff is estopped by his conduct to claim damages in this instance; but there is not anything in this record to indicate that the railway company was misled to its prejudice by anything said or done by the plaintiff. Yellowstone County v. First Trust & 3. We have examined the specifications of error predicated upon the admission and rejection of evidence and upon the giving of certain instructions, but fail to discover prejudicial error. The judgment and order are affirmed. The determination of the trial court that a confession of defendant was obtained without the influence of hope or fear exercised by a third BRANTLY, C. J., and SANNER, J., con- person will not be disturbed on review, unless cur. (83 Or. 429) STATE v. MORRIS.. 19 there is clear and manifest error. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3066.] 6. CRIMINAL LAW 520(7)-CONFESSIONSADMISSION. of the prosecutor and sheriff, which examination was conducted in an ordinary manner, without any threats being made or inducements offered, is voluntary and admissible in evidence; the fact that the sheriff after the confession told accused he would do what he could for him not affecting it. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1180, 1181.] 7. CRIMINAL LAW 519(9)-CONFESSIONSADMISSIBILITY IN EVIDENCE. (Supreme Court of Oregon. Feb. 27, 1917.) Where accused was fully informed of the na1. INDICTMENT AND INFORMATION ture of the charge against him and was advised "MURDER IN SECOND DEGREE"-SUFFICIEN- to consult his people or an attorney before makCY-HOMICIDE. ing any statement, being warned that any stateThe indictment charged that defendant and ment he made would be used against him, his another, then and there acting together, and un-confession, made as a result of the examination lawfully and feloniously engaged in committing a felony, to wit, the crime of larceny in a dwell ing house, by then and there unlawfully and feloniously stealing and carrying away currency of the value of $105, and while engaged in the commission of such felony, unlawfully and feloniously assaulted deceased by choking and strangling her, whereof she died. L. O. L. § 1894, provides that if any person shall purposely and maliciously, but without deliberation and premeditation, or in the commission, or attempt to commit, any felony other than arson, etc., kill another, such person shall be guilty of "murder in the second degree." The indictment substantially followed forms Nos. 4 and 12, L. O. L. PP. 1010, 1012. Held, that as an indictment which sets forth the acts constituting the crime clearly and distinctly, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended thereby, is sufficient under sections 1437-1439, the indictment is not defective under sections 1435-1460, in which said sections are found, because failing to directly allege that defendants took, stole, or carried away money; it being plainly charged that the killing was done while defendants were feloniously stealing money in a dwelling house. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 91. For other definitions, see Words and Phrases, First and Second Series, Murder In Second Degree.] 2. CRIMINAL LAW 1166 (6)-HARMLESS ERROR-EXAMINATION OF JURORS. Where after all of the regular panel of jurors except one venireman had been examined and excused and before any juror had been accepted, the prosecutor asked the remaining venireman an improper question and he was excused, the asking of such question was not reversible error, it not appearing that defendant's rights were prejudiced, for he might thereafter examine any juror as to whether he had heard anything about the occurrence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3113, 3115, 3118.] 3. CRIMINAL LAW 1045 APPEAL-IMPROPER CONDUCT OF COUNSEL. A mere exception to an improper remark by the prosecutor in examining venireman will not be considered on appeal, where the venireman was not challenged and no ruling on such remark was demanded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2652, 2685.] That a confession is made in answer to questions, assuming the guilt of accused after notice by the officers who propounded the questions that any statement would be used against him, does not render the confession inadmissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1172-1174.] 8. CRIMINAL LAW 518(3)—CONFESSIONSADMISSIONS. Where the sheriff and the prosecutor warned accused that any statement he made would be used against him, and that it was unnecessary for him to make any statement, it was unnecessary for the deputy sheriff, before propounding questions to accused, to again caution him. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1100.] 9. CRIMINAL LAW 530-EVIDENCE-CONFESSIONS. Where accused's confession was reduced to narrative form at his dictation and read over and signed by him, it is admissible, though not in his exact language. 10. CRIMINAL LAW ION TESTIMONY. 471-EVIDENCE-OPIN When the matter under consideration before a jury is of such a character that any one of 1169(2)-APPEAL In view of Const. art. 7, § 3, providing for the disregarding of harmless error, the erroneous admission of expert testimony that the death of deceased was not accidental was harmless, where the jury could not have drawn any other inferA confession, unless voluntary and not in-ence from the testimony, there being testimony duced by hope or fear, is not admissible; L. O. that deceased died of strangulation, and accused's 4. CRIMINAL LAW 517(1)-CONFESSIONSADMISSION. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |