Графични страници
PDF файл

and iron, and weighed about 300 pounds. A pipe ran around the middle of it and under the deck, so that, when it rested on the plank, the pipe fell upon its middle, causing the whole weight of the cage to rest on that point. Some of his witnesses testified that there was no hole in the floor; that it was quite as convenient for the plaintiff to stand upon it, even if he had been compelled to stand astride of the hole; that it was safer than to go upon the deck of the cage; and, in any event, that the proper way for the plaintiff to have reached the guide rods was by standing on a board running across the shaft outside of the cage, or by standing on a scaffold made by placing a plank upon two bars on the frame of the elevator about 20 inches above the floor. The defendant denied that he had admitted at any time that he was to blame for the accident, but stated that, while he did direct the plaintiff to make the change in the elevator, he gave no directions as to how the work should be done. It is somewhat difficult to understand from the transcript of the evidence exactly what the situation was; but the foregoing seems to be a fair statement of it.

Counsel for appellant contends that this evidence did not make a case for the jury, because it conclusively appeared therefrom that the plaintiff was not directed to go upon the cage, and that of the different ways by which the work could have been done he chose the one which was obviously the most dangerous, and hence was guilty of contributory negligence as a matter of law. It seems to us, however, that in directing the plaintiff to make the change, without pointing out the mode which should be pursued, the defendant necessarily directed him to employ such mode as to him seemed most suitable, and necessarily that he should go upon the cage and use that as his means of support, if that should appear as convenient and as safe as any other mode. Taking the order in connection with the fact which the eridence tends to show, and which for present purposes we must assume to be established, that, if the plank had been sound and flawless, the deck of the cage would have furnished as safe footing as the floor or scaffold referred to by the defendant, the evidence fairly suports the allegation of the complaint on this point; and it was a question for the jury to say, upon the evidence, whether the defendant was guilty of negligence in the use of the plank for a support and in giving the general directions to the plaintiff that he did.

Mr. Thompson, in his work on Negligence, $ 5372, says: "Generally speaking, where an employé has a duty to perform, and there are two ways or methods of performing it or of reaching the place of performing it, one of which is dangerous and the other safe, or one of which is more dangerous than the other, and the employé knowingly and volun

87 P.-29

tarily, or through negligent ignorance, and without there being any emergency, selects the dangerous one or the more dangerous one, in consequence of which selection he brings upon himself an injury which probably would not have befallen him if he had selected the other one, he cannot make his own negligence in making the choice the ground of recovering damages against his employer, but contributory negligence will be imputed to him as matter of law.” It will be noticed that under the rule stated by this author negligence will be imputed to the plaintiff only when it is apparent that he acts with knowledge that the method chosen is the more dangerous, or the circumstances are such that he ought to know that it is the more dangerous. We hold the converse of the rule to be true. When the servant is directed to perform certain work without directions as to the mode or means to be employed by him, and he voluntarily selects the mode or means which is dangerous or more dangerous, rather than the one which is safe or less dangerous, but does so without knowledge of its dangerous character, and the circumstances are not such as to warrant the presumption that he ought to know, neg. ligence will not be imputed to him as a matter of law, but it will be left to the jury to determine whether or not under all the circumstances he ought to have known of the danger. In other words, in order that coultributory negligence may be attributed to him as a matter of law, it must appear that the mode employed by him is known to him to be more dangerous, or its dangerous character must be so obvious that he may be presumed to have known it ; for it seems clear that if the means of doing the work have been supplied by the master, and one of them is dangerous, the choice being left to the servant, negligence should not be imputed to him as a matter of law unless he has knowledge, actual or constructive, that one of the means is dangerous and the other safe. 1 Labatt, Master & Servant, & 333, and illustrative cases in note. We are of the opinion, then, that the contention of the defendant cannot be sustained, and that the court correctly overruled his motion for a new trial on the ground that the evidence was not sufficient to go to the jury.

The first criticism made upon the instructions is directed to paragraph 4 of the charge, in which the court laid down the rule as to where the burden of proof rests to establish negligence on the part of the defendant and contribuory negligence on the part of the plaintiff. We think the rule is correctly stated and that the defendant has no ground of complaint.

Instruction No. 8, requested by defendant, after quoting the above paragraph from Thompson on Negligence, had added to it a sentence which was deemed necessary to make it applicable to the circumstances of this case. The court modified it by inserting the word “obviously” before the word “dangerous” in the first part of the paragraph. It is said that this modification of the text was prejudicial. We do not see, however, that it materially alters the meaning of the language used by the author, because the word "obviously" only emphasizes the notion that, in order for contributory negligence to be imputed to the plaintiff as a matter of law, the danger of the means or method must have been known to him, or the circumstances must have been such that it ought to have been known to him. The sentence added by counsel was also modified to express the same idea more clearly.

We find no error in the record, and the judgment and order are affirmed.


Mandamus by the state of Montana, on the relation of Pete Teague, against the board of county collissioners of Silver Bow county, Mont., W. D. Clark, and others. From a judgment of dismissal, relator appeals.

Affirmed. John F. Davies and Mackel & Meyer, for appellant. C. F. Kelley and Edwin M. Lamb, for respondents.

MILBURN and HOLLOWAY, JJ., concur.



As a general rule a court may order evidence taken to refresh its memory concerning matters of which it is required to take judicial notice, but, where a constitutional amendment is prima facie a law, testimony should not be taken to inform the court as to the regularity of its adoption.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 72.] 2. CONSTITUTIONAL LAW – AMENDMENT OF CONSTITUTION-PRIMA FACIE VALID.

Where the Governor declared by a proclamation that an amendment (House Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, providing for the election and tenure of county commissioners, had been adopted, the district court, as well as the Supreme Court, took judicial notice thereof, and, the amendment becoming prima facie a part of the Constitution, one who failed to plead facts showing noncompliance with Const., art. 19, § 9, providing for the manner in which the Constitution may be amended, could not attack the validity of the amendment under that section. 3. SAME-SEPARATE AMENDMENTS.

The amendment (Ilouse Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, changing the term of county cominissioner's from four years to six years, extending the tenure of then incumbents, and giving district judges power to fill vacancies on the board, is not violative of Const., art. 19, § 9, providing that separate amendments must be prepared and distinguished by numbers, or otherwise, so that they may be voted upon separately. 4. OFFICERS-CONSTITUTIONAL LAW-EXTENDING OFFICIAL TENURE.

The amendment (House Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, changing the tenure of county commissioners from four years to six years, and extending the tenure of then incumbents, is not violative of Const., art. 5, § 31, providing that no law shall extend the term of office of any public officer after his election, that section having reference to legislative enactments only.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

MILBURN, J. This is an appeal from an order of the district court of Silver Bow county sustaining defendants motion to quash the alternative writ issued and dismissing the proceedings, and from the judgment which was accordingly entered against relator. Relator's affidavit in the mandamus proceedings recited that the defendant commissioners were the qualified and acting board of commissioners of Silver Bow county, and, as such, acted as the board of canvassers for the year 1904; that, prior to the election of that year, the relator with two others were nominated to be voted for severally at the next election for the office of county commissioner; that the votes were canvassed and that the relator and the two others received the highest number of votes of those cast for the several candidates for the positions named; that demand was duly made upon the canvassers to declare the relator and the others as elected to the office mentioned, and to order and direct a certificate of election to issue to the relator, but that the defendants wholly failed and refused to do so. The alternative writ was issued, and a motion to quash was filed. This motion duly coming on for hearing, the court's attention was invited to the fact that the relator based his application upon the alleged fact that the constitutional amendment submitted to the people at the said election. and known as "House Bill No. 55" (Session Laws 1901, p. 208), had not been legally adopted, for the reason that the same had not been published in manner and form and for the length of time required by section 9, article 19, of the Constitution. The court held that this question was one of law for the court, and that it would take judicial notice of the manner of the supposed adoption of said amendment. The court further concluded that it would hear evidence upon the point in order to actually acquaint itself with that of which it took such notice. Thereupon certain evidence was introduced tending to show that the amendinent had not been published for the period required by the Constitution, in any paper designated by the Secretary of State for that purpose in said county. The court, after taking this evidence, held that the amendment had been adopted in manner and form as required by law. Hence this appeal.

Almost all of the argument of the appellant, relator in the court below, is devoted to the question as to whether or not the

Secretary of State did in fact "cause” the the term of the then incumbents long after proposed amendment to be noticed and pub- their election, in other words, to fill certain lished in the paper of his selection in the offices during a certain period of time by said county the required length of time. means of a constitutional amendment; and A great deal of discussion is indulged in as (3) it provided how vacancies on the board to what is three months' notice. Other were to be filled, to wit: By the judges questions are raised which will be considered of the district court. It is urged that these later.

are three separate and distinct matters subSo far as the taking of evidence by the mitted in one amendment, and that they court to refresh its memory is concerned, were not so clearly distinguished by numbers there cannot be any doubt, that, as a general or otherwise so that each could be voted rule, a court may do so. It may look into an

upon separately. almanac to refresh its memory as to what It does not seem to us that these are three time the sun rose at Butte on the 4th of July separate propositions upon which the people last. The question before us in this case were to be called upon to vote.

It is apmust be considered as one of practice, and parent to us, as it must have been to the 'not one of substantive law. The court be

Legislature, that there is only one matter low, as well as this court, takes judicial and one subject. The purpose of the Legisnotice of the fact that the chief executive lature was to ask the people at the polls of this state, soon after the election of 1902. in 1902 whether they wished to amend the (leclared by proclamation to the people of Constitution so as to have a board of county this state that the amendment in question commissioners, the term of each commissionhad been adopted. Therefore it was prima er to be six years, one commissioner to go facie the law at the time the motion to out every two years, with power given to the quash was submitted, and the motion to district judge to fill vacancies at all times quash, therefore, should have been granted in the board, and to have the term of each without the taking of evidence to inform the member of the then existing boards and of court, because the court was already in- short term boards to be elected in 1902 in formed prima facie. If there were any fatal new counties extended so that the new sysirregularities in the manner and form of its tem might go into effect on the first Monday adoption, and if in fact the amendment was in January, 1907. This was all one single not adopted and therefore did not become scheme, with the single purpose of establishpart of the Constitution, notwithstanding ing and maintaining in existence a board the fact that the Governor declared the same of commissioners two of whom at all times to be part of the Constitution, such attack

would be experienced men. upon the amendment and such attack upon It does not appear to us, as is claimed the prima facie presumption of the court by counsel, that this amendment is in violathat it was a part of the Constitution nec- tion of article 5, section 31, of the Constituessarily should have been set out in the tion, providing that no law shall extend the pleading in the first place and proven by the term of any public officer after his election. petitioner, relator herein. This was not done. .

The term "law,” as we understand it, in The pleading, on its face, was opposed to this connection does not refer to the Conthe prima facie law of the land, of which

stitution and the will of the people expressed the court took judicial notice. There was at the polls in the matter of proposed amendnot any offer on the part of the relator to ments to that instrument, but relates to laws amend his position in order to set out the made by the Legislature, which, of course, facts which he attempted to prove in evi- must not violate any provision of the Condence to the court on the motion to quash.

stitution. But we do not know of anything The court, therefore, was prima facie correct in the Constitution which forbids the people in sustaining the amendment of the Constitu- to amend their own Constitution, even if tion, of which it, as well as we, should take the amendment go to the effect of repealjudicial notice.

ing half thereof, provided the instrument, The next point raised is that, beside the after amendment, insures a Republican form matter of publication, the Legislature can- of government in this state and is not in not legally submit a proposed amendment in violation of the Constitution of the United any form which it may adopt, except the con- States. stitutional one, and that, if it do submit In the brief of relator it is repeated a proposed amendment in any form not au- that under article 19, section 9, of the Conthorized by the Constitution, its action would stitution, separate amendments must be prebe a nullity, the point being that an examina-pared and distinguished by numbers or othertion of the proposed amendment shows that wise, so that they can be voted upon separatethe Legislature sought to provide in the ly, provided, however, that no more than form of one amendment for three separate three amendments to the Constitution shall things, to wit: (1) The election of commis

be submitted at the same time, and appelsioners for a term of six years, whereas it lant claims that there are three distinct had been theretofore only four years; (2) matters submitted in the form of one amendthat it attempts to provide for extending ment. As we have said, this does not appear

[ocr errors]

to us to be correct. There is only one logical conclusion and that is that the object of the Legislature in submitting this amendment was as we have heretofore stated.

The will of the people in this matter as expressed at the polls was supreme, and, prima facie, it appears that the amendment was submitted lawfully and adopted.

Without approving the action of the court below in taking testimony, and without considering what reasons the court below had in sustaining the motion to quash, we conclude that its action was correct in quashing the writ, dismissing the proceedings, and rendering judginent for the respondents.


in an instruction that, in determining the weight to be given to the testimony of plaintiff and his wife, the jury might consider the testimony given by them at the former trial, because singling out particular evidence.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $$ 777-580.] 4. SAME-READING LAW TO JU'RY.

In an action against a notary for falsely certifying to an acknowledgment of a mortgage, on which plaintiff advanced money, the issue being whether plaintiff relied upon the certificate, plaintiff testified that he did rely on the certificate, but defendant contended that at a former trial plaintiff testified that he did not see the mortgage until after he had paid over the money, and counsel for defendant in his argument read a portion of the opinion of the Supreme Court in the case on appeal after the former trial, in which it was stated that if plaintiff did not rely on the certificate, the mere fact of the notary's violation of his duty would not entitle plaintiff to recover. The court gave instructions embodying the law as so declared by the Supreme Court. Held, that under the facts there was no abuse of discretion in refusing to prohibit the reading of the excerpt in question.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, 88 290, 291.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by Edward L. Mahoney against John M. Dixon and others. From a judgment in favor of defendants. Plaintiff anpeals. Affirmed.

John J. McHatton, for appellant. L. P. Forestell and Chas. R. Leonard, for respondents.

BRANTLY, C. J., and HOLLOWAY, J., concur.

(34 Mont. 454)

MAIIONLY V. DIXON et al. (Supreme Court of Montana. Nov. 5, 1906.) 1. WITNESSES — CROSS-EXAMINATION - SCOPE


Code Civ. Proc. $ 3376, provides that the opposite party may cross-examine a witness as to any facts stated in his direct exainination or connected therewith, and section 3144 provides that it is within the discretion of the court to permit inquiry into a collateral fact when it affects the credibility of a witness. In an action against a notary for falsely certifying to an at knowledgment of a mortgage, on the security of which plaintiff advanced money, plaintiff was asked on direct examination whether he had any interest in the note and mortgage, which did not run to plaintiff, to which he replied in the affirmative, and on cross-examination he was asked to state why the mortgage was so (rawn, to which he replied that it was in order that he would not have to pay taxes on it. Held, that the evidence was admissible as proper cross-examination, and for the purpose of affecting the credibility of the witness.

[Ed. Note.--For cases in point, see vol. 50, Cent. Dig. Witnesses, $$ 949, 967–972, 1106, 1108.) 2. SAME.

On direct examination plaintiff was asked to state what, if any, investigation he made with a view to recovering his money, and he replied that he had the one wlio introduced the mortgagor to the notary brought back for the purpose of seeing whether he could get his money out of him, but found he could not, and then saw the notary and told him that he would look to him for it. On cross-examination plaintiff was asked whether any offers had been made to him by the one who introduced the mortgagor to the notary, to which he replied that he did not recollect that there were any efforts made. II eld, that it was proper cross-examination.

[Ed. Note.-For cases in point. see vol. 50, ('ent. Dig. Witnesses, $S 919, 967-972.] 3. TRIAL — INSTRUCTIONS - CREDIBILITY


Code Civ. I'roc. $ 3380, provides that any witness may be impeached by evidence of inconsistent statements. II eld, that where plaintiff and his wife gave testimony contradictory to their testimony at a former trial, and the only other witness at the second trial who testiSed at the first trial admitted the correctness of his former testimony, and gave no testimony contrary thereto, there was no reversible error

IIOLLOWAY, J. This cause was heretofore before this court, and a sufficient statement of the case will be found preceding the opinion. Mahoney V. Dixon, 31 Mont. 107, 77 Pac. 519. Upon the new trial the jury returned a verdict in favor of the defendants and judgment was entered accordingly. From that judgment and order denying him a new trial the plaintiff appeals.

The assignments of error which need be considered are: (1) Errors in the admission of evidence; (2) the giving of instruction No. 12; (3) misconduct of counsel; and (1) insufficiency of the evidence to justify the verdict.

1. On the direct examination of plaintiff his counsel made this observation: "Iohserve that this note and mortgage were made to George H. Cotter.” And then asked this question: "You may state whether or not you had any interest in the note and mortgage." To which the plaintiff replied: "Yes sir, I had. The money was mine, and I had it made out that way for my use and benefit." On cross-examination he was asked to state why Cotter was nameil as nortgagee. Objection was made to this question, but the objection was overruled, and the witness answered: “In order that I would not have any taxes to pay on it.” 'Counsel for plaintiff moved that the answer be stricken out, but the motion was overruled. We think the evidence was admissible as proper (rossexamination (Code Civ. Proc. § 3370), and

for the purpose of affecting the cre Jibility The language in which the instruction was of the witness (section 3141). On direct drawn, then, in so far as it alluded to the examination the plaintiff was asked to state 'directions such as witness Sample testified what, if any, investigation he made with a to,' was merely a method of identifying that view to recovering his money. He answered element of the defendant's evidence. The inthat he had Reek brought back for the pur- struction had no tendency to disparage the pose of seeing whether he could get his mon- testimony of that witness." Hartmann v. ey out of Reek, but found he could not, and Louisville & N. Ry. Co., above. And it was then saw Dixon and told Dixon he would held to be reversible error for the trial court look to him for it. On cross-examination in that case to refuse the instruction menplaintiff was asked whether any offers had tioned, although the witness Sample was been made to him by Reek or Reek & Churchill therein designated by name. In Bunce . or in their behalf. This was objected to as McMahon, 6 W'yo. 24, 42 Pac. 23, the court not cross-examination, but the objection was seemed to be of the opinion that such an oboverruled, and the witness answered: "I do jection to an instruction is not tenable in not recollect that there were any efforts any event. We are not now prepared to go made.” There was no error in the court's farther than to say that we deem it bad pracruling. It was proper cross-examination, tice in any case for a court in its instructions and, if it had not been the answer, discloses to designate a witness by name; and, if the that no prejudice resulted.

case presented comes within the general rule 2. Instruction No. 12 given by the court is announced above, the error will be deemed as follows: "Instruction No. 12. You are sufficient to work a reversal. But, in this instructed that in determining the weight to instance, the plaintiff and Mrs. Mahoney were be given to the testimony of the plaintiff the only witnesses to whom the rule could in and of Mrs. Mahoney, you can consider the any event be made applicable. Confessedly, testimony given by them in the former trial there was a direct conflict between the tesof this case, which has been produced in evi- timony given by each of these witnesses on dence in this cause, if you find such prior the second trial and what the defendants testimony has been given, and in that con- claimed was their testimony given on the nection, you have a right to compare the first trial. It was properly left to the jury testimony given on the former trial, as es- 10 determine whether in fact these witnesses tablished in this cause, with the evidence had testified upon the first trial, as the dewhich was given in this hearing, for the pur- fendants contended they had. The evident pose of determining the weight to be given purpose of introducing what the defendants to the testimony of such witnesses.” The claimed was the testimony given at the first objection made to this instruction is that it trial by these witnesses, was to impeach singles out by name certain witnesses, and them, by showing that they had made statemakes the rule of law announced applicable ments on the first trial contradictory of their to them only. It is a general rule that: testimony on the second trial. Code Civ. "Where there are several witnesses testify- Proc. $ 3380. No other witness at the second ing to a particular hypothesis of fact, it is trial testified at the first trial, except the error for the court, in instructing the jury, witness Leonard, and the record fails to to single out a particular witness, and direct disclose any attempt whatever to impeach their attention to his testimony, either in him. In fact, there was not any material the way of disparagement, as where the court portion of his testimony given at the first gives in respect of a particular witness the trial called to his attention on the second familiar direction explaining the maxim, fal- trial, and in every instance where it was sus in uno, falsus in omnibus, or where, by done, he admitted the correctness of his formsingling out the testimony of a witness, the er testimony and did not testify to anything tendency of the instruction is to leave the on the second trial contrary thereto. So jury to attach undue importance to it." that, if the court had properly drawn this Hartmann v. Louisville & N. Ry. Co., 39 Mo. instruction, omitting the names of the witApp. 88. This is in effect the decision of nesses, and making it general in its applicathis court in Wastl v. Montana U. Ry. Co., tion, the jury could not have understood the 17 Mont. 213, 12 Pac. 772. But, if the wit- instruction as applicable to any one but the nesses so designated are the only ones to plaintiff and Mrs. Mahoney. Under these whom the rule could possibly be applicable, circumstances, we think, the giving of this it is quite generally held that the giving of instruction did not work any prejudice to such an instruction will not constitute re- the appellant. Hamilton v. Great Falls St. versible error. Shaw v. State, 102 Ga. 600, Ry. Co., 17 Mont. 331, 42 Pac. 860, 43 Pac. 29 S. E. 477; Dyas v. Southern Pac. Co.. 713. In State v. Scnepel, 23 Mont. 523, 59 1-10 Cal. 296, 73 Pac. 972. With respect to Pac. 927, and in State v. Jones, 32 Mont. this, the Missouri court above further said: 112. 80) Pac. 1095, it was held not to be error "Mr. Sample was the only witness for the for the trial court to refuse an instruction in defendant who testified to the existence of which a witness was designated by name. the special direction or to its terms. It was 3. In the course of his argument to the from his lips alone that the language of the jury, one of the attorneys for the defendants direction, as he recollected it, was delivered. read a portion of the opinion of this court

« ПредишнаНапред »