The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-05-16
HIMSELF WAS TO BLAME
Supreme Court Decides the Hun
ter Railroad Case.
WAS KILLED NEAR CLANCY
Action OF Lewis and Clarke County
Court Granting a Non Suit in
the Case Affirmed by the
Decision,
Special Dispatch to the Standard.


a motion for a rehearing of the case
of the state of Montana ex rel. J. P.
Remis VS.. the district court of Carbon
county, recently decided.
The action of the district court of
Lewis and Clarke county in granting a
non-suit in the case of Herbert and
Richard Hunter VS.. the Montana Cen
trail was affirmed. Henry N. Hunter
was killed at a crossing near Clancy
in January, 1896 H was riding a sur
ery with three or four other men, one
of whom, the driver, a liveryman, had
driven over the route many times and
was familiar with it. AS they ap-
preached crossing at a place called
Hartford, a train was seen approach
ing. While they We're about As feet
from the track, instead of stopping,
the driver whipped up the team and
cleared the engine from four to six
feet. AS they We're going over Hunter
jumped from the conveyance and was
struck by the engine. He died within
an hour after the accident. His heirs
commenced suit for $50, 900 damages
On the trial there was a conflict in the
testimony, whether the headlight was
burning or whether the bell was rung.
Judge Blake, then on the bench, in di-
recting the jury to return verdict for
defendants, said that the defendant
had been guilty of negligence in that
it's engineer or fireman failed to ring
the bell or give warning of the ap-
proach of the engine but that Hunter
and the driver had been guilty of con-
tributory negligence in failing to stop,
look or listen for an approaching
train" and that therefore defendant
was entitled to a verdict From this
judgment and from the lower courts
order denying a new trial the plaintiffs
appealed.
Chief Justice Brantly for the court,
in affirming the lower court held that
its assumption as to the carelessness
Of the raflroa6 +4eoEspany was correctly
made and that the legal conclusion
drawn from the fact thus assumed to-
be proved was also the correct one.
The court in speaking of the duty of
the railroad company and of persons
situated as Hunter and his companions
were, said:
These requirements are for the ben
eft of the public and persons travelling
upon the public highways have right
70 expect compliance on the part of
the railroad company. But failure of
obedience on the part of the railroad
company ITO the requirements of the
statute does. not excuse the citizen
from the use of at least ordinary dill
gence and prudence. So that if one.
upon his approach to a railroad cross
ing intending to pass over It, fails to
make a vigilant use of his senses, tha t.
is, to look or listen and to stop for the
purpose, if necessary. to learn if there
is any danger and by reason of this
failure to exercise this precaution, he
is injured, then he contributes direct
~ to such injury and cannot be heard
to say that the railroad company did
MN the injury and should compensa te
MN Tor Its wrong. The injury in such
case is attributable to the reckIessness
and want of care in the person him
self. For if he had performed the duty
he owed himself and taken the neces-
sary precaution he would not have
been injured. The amount of care to
be exercised depends somewhat upon
the special circumstances in each
case"
Hamilton Nelson Case
The second case decided was James
l.. Hamilton, executor of the estate of
Michael Sullivan. deceased VS.. Sarah
A. Nelson, Administrative of the estate
of John W. Nelson, deceased. Two
causes of action We're stated in the
complaint in this suit The first was
on a promissory note for $3.50, and the
other was based upon a Judgment for
$299. The trial was had before Judge
Brantly. A general verdict was rem
dered for defendant. Plaintiff moved
for new trial on the whole cause
upon the sole ground that the evidence
was insufficient to justify a verdict for
defendant in the first cause of action,
The court granted the motion. Defend
ant appealed.
1t is held by the supreme court in an
opinion by Justice Piggott, that error
was committed in granting a new trial
of both causes of action. The only at
tack on the verdict having been that
the evidence was insufficient to sustain
it as to the first cause of action. it is
held that plaintiff conceded that the
second cause had been properly tried
and the correct result reached.
where the issue or issues in one
cause of action have been properly tried
and those in another cause of action in
the same suit have been improperly
tried, it is the duty of the trial court
in passing upon a motion for a new
trial to grant it only as to those issues
which have been improperly tried,
where this can be done readily and
without confusion resulting upon the
retrial That part of the order granting
a new trial of the second cause is re-
versed. The order as to the first cause
is affirmed"
The opinion is concurred in by JUS
tice Hunt, Chief Justice Brantly dis
qualified.
Clancy Reversed.
The other case passed upon was an
appeal from the district court of Silver
Bow county, Judge Clancy. 1t was en-
titled c. Bryant VS.. Andrew ]. Davis
and the First National bank of Butte
an action to establish and enforce a
trust arising out of an alleged agree
ment between the plaintiff and the
bank.
The complaint states that Davis was
selected by H. T. Van Buskirk and L.
Eshle, plumbing concern. and the
bank. to which they We're indebted, to
bid in their stock of plumbers supplies
the concern having become involved.
and that Davis as such trustee had vio-
lated the trust. The plaintiff asked the
court to require the trustee. to account
and remove him. Judgment for plain