The court erred in holding that there was a material variance between the proof and the allegations of the complaint. (Robinson v. Helena Light Ry. Co., 38 Mont. 222,99 P. 837; Wilcox v. Newman, 58 Mont. 54, 190 P. 138; Poindexter Orr Live Stock Co. v. Oregon Short Line R. Co., *Page 311 33 Mont. 338, 83 P. 886; Frederick v. Hale, 42 Mont. 153,112 P. 70; Stewart v. Stone Webster Engineering Corp.,44 Mont. 160, 119 P. 568; Previsich v. Butte Electric Ry. Co.,47 Mont. 170, 131 P. 25; Mosher v. Sutton's New TheaterCo., 48 Mont. 137, 137 P. 534; Milwaukee Land Co. v.Ruesink, 50 Mont. 489, 148 P. 396; Rice v. Chicago M. S.P. Ry. Co., 59 Mont. 570, 197 P. 999; Wasley v. Dryden,66 Mont. 17, 212 P. 491; Peabody v. Northern P. Ry. Co.,80 Mont. 492, 261 P. 261; Dougherty v. Robb, (Tex.Civ.App.) 5 S.W.2d 582.)
The holding that the plaintiff had not submitted evidence sufficient to go to the jury as to the negligence of the defendants was error. Plaintiff's contention is that he was injured by the negligent act of his coemployee, and under the federal Employers' Liability Act the negligence of the coemployee is placed upon the same basis as the negligence of the employer. (Chesapeake O.R. Co. v. De Atley, 241 U.S. 310,60 L.Ed. 1016, 36 Sup. Ct. Rep. 564; Stevens v. Hines, 63 Mont. 94,206 P. 441.) Courts uniformly hold that in circumstances such as those presented in the instant case, a question of actionable negligence has been made for the jury. (Ellinghouse v. AjaxLivestock Co., 51 Mont. 275, Ann. Cas. 1916D, 836, 152 P. 481;Stevens v. Hines, supra; Silvia v. New York, N.H. H.R.Co., 203 Mass. 519, 89 N.E. 1061; Galveston, H. S.A. Ry. Co. v. Henefy, (Tex.Civ.App.) 115 S.W. 57; Campbell v. Jones,60 Wn. 265, 20 A.L.R. 671, 110 P. 1083; Harsen v. NorthernP. Ry. Co., 139 Wis. 186, 120 N.W. 826; Vannest v.Missouri, K.T. Ry. Co., 181 Mo. App. 373, 168 S.W. 782; Ellis v. Bear Creek Milling Co., 115 Miss. 742, 78 So. 706; St.Louis S.F.R. Co. v. Cox, 31 Okla. 444, 122 P. 130; WesternRy. Co. of Alabama v. Mays, 197 Ala. 367, 72 So. 641; St.Louis, I.M. S. Ry. Co. v. Carter, 111 Ark. 272,164 S.W. 715; Baltimore Ohio Ry. Co. v. Belinski, 106 Md. 452,67 A. 249; Missouri, K. T. Ry. Co. v. Watson, (Tex.Civ.App.) 195 S.W. 1177.) *Page 312
There can be no question but that under the Act under which this action is brought the defendants owed to the plaintiff the positive and continuing duty to furnish him a reasonably safe place in which to work, reasonably safe appliances with which to work, and reasonably competent coemployees, and continuing careful conduct of such coemployees. "If the injury was due to the neglect of a co-employee in the performance of his duty, that neglect must be attributed to the employer." (Illinois Cent. R.Co. v. Skaggs, 240. U.S. 66, 60 L.Ed. 528,36 Sup. Ct. Rep. 249; San Pedro, L.A. S.L.R. Co. v. Brown, 258 Fed. 806, 8 A.L.R. 865, 170 C.C.A. 100; Stevens v. Hines, supra.) Variance: We believe that it is apparent from the record in this case that the plaintiff deliberately alleged one state of facts and sought to prove another. We understand the rule announced by sections 9183 and 9184, Revised Codes 1921, concerning the question of variance, but section 9185 also provides that where the plaintiff fails to prove the cause of action alleged the same amounts to a failure of proof and is fatal to the plaintiff's recovery. It is elementary in negligence cases that the plaintiff must rely upon the specific acts of negligence pleaded. (Pierce v. Great Falls etc. Ry. Co.,22 Mont. 445, 56 P. 867; Forsell v. Pittsburg M. Copper Co.,38 Mont. 403, 100 P. 218; Gregory v. Chicago, M. S.P. Ry.Co., 42 Mont. 551, 113 P. 1123.) The corollary to this rule is that although the plaintiff may prove other acts which may be negligent, he cannot recover if he fails to prove the specific acts of negligence relied upon. A leading case is Flaherty v.Butte Elec. Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 P. 416. In that case the allegation was that the motorman failed to shut off the current and apply the brakes of his car, whereas the proof showed that the negligence, if any, of which he was guilty was *Page 313 failure to keep a lookout. The court held that this was fatal. (See, also, Thurman v. Pittsburg M. Copper Co., 41 Mont. 141,108 P. 588; Knuckey v. Butte Elec. Ry. Co., 41 Mont. 314,109 P. 979; Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 P. 706; American Livestock Loan Co. v. Great Northern Ry. Co., 48 Mont. 495,138 P. 1102; Torgerson v. Stocke, 72 Mont. 7, 230 P. 1096.) The same rule has been applied in other jurisdictions. (Jernigan v.Houston Ice B. Co., 33 Tex. Civ. App. 501, 77 S.W. 260;Tunnel Min. Leasing Co. v. Cooper, 50 Colo. 390, Ann. Cas. 1912C, 504, 39 L.R.A. (n.s.) 1064, 115 P. 901; Chaney v.Murphy, 180 Iowa, 716, 161 N.W. 658; Louisville N.R. Co. v.Parsons, 213 Ky. 432, 281 S.W. 519; Norwood v. St. Louisetc. Ry. Co., (Mo.App.) 277 S.W. 936; Cincinnati, N.O. T.P.Ry. Co. v. Heinz, 217 Ky. 43, 288 S.W. 1020.)
Negligence: This is one of those cases where the operation involved was a simple one in which the details of the work were left to the employees. Counsel for the plaintiff have referred to the negligence in this case as simple negligence. Cases of this character always present close questions, as they are always close to the line separating the conduct of an ordinary person under the circumstances from negligent conduct. In discussing the question we must keep in mind the rule announced by this court that a mere scintilla or hint of evidence is not sufficient. (McIntyre v. Northern P. Ry. Co., 58 Mont. 256,191 P. 1065.) We must also keep in mind the rule that in all negligence cases, and particularly those arising under the federal Act, negligence is never presumed, but the burden is upon the plaintiff to prove it. (Patton v. Texas P. Ry. Co.,179 U.S. 658, 45 L.Ed. 361, 21 Sup. Ct. Rep. 275.)
It is clear from the evidence that the details of this particular work were not prescribed by the defendants, but were left to the good judgment of the employees themselves, and for errors, if there were any in that regard, the defendants are not liable under the doctrine of Markinovich v. Northern *Page 314 P. Ry. Co., 55 Mont. 139, 144, 174 P. 183. There is another Montana case that seems to us to be controlling here —Markarites v. Chicago, M. St. P.R. Co., 59 Mont. 493,197 P. 743. Here, as in that case, the fellow-servant was doing exactly what he was expected to do; he had not departed from the usual routine of work, as claimed by the plaintiff, and while doing that work it was as much the plaintiff's duty to keep out of the way as it was to assist in the work. He knew the standing ties were to be removed and that the fellow-servant was the man to remove them; he had seen him do it before and knew what to expect this time, and under the circumstances it seems to us that it was clearly his duty to keep out of the path of the standing ties. If his failure to do that brought about his injury, he cannot recover.
Many similar cases involving situations somewhat like the one here involved have arisen in the decided cases. In the following cases there was held to be no evidenc of negligence for the jury:Munia v. Chicago etc. Ry. Co., 164 Wis. 512, 159 N.W. 749;Woods v. Cincinnati etc. Ry. Co., 179 Ky. 405, 200 S.W. 616;Long v. Southern R. Co., 155 Ky. 286, 159 S.W. 779; Chicagoetc. Ry. Co. v. West, 124 Okla. 147, 254 P. 91; Ruping v.Oregon Short Line Ry. Co., 51 Utah, 480, 171 P. 145; Hustis v. Herbert, 256 Fed. 816, 168 C.C.A. 162; Louisiana Ry. Nav.Co. v. Reynolds, (Tex.Civ.App.) 278 S.W. 954; Lancaster v.Taylor, (Tex.Civ.App.) 281 S.W. 654; Scott v. Norfolk W.Ry. Co., 100 W. Va. 88, 130 S.E. 98; New York etc. Ry. Co. v.Allen, 62 Ind. App. 391, 113 N.E. 315.
It is the rule that where the plaintiff's own case shows assumption of risk it may be taken advantage of by the defendant. (Stevens v. Henningsen Produce Co., 53 Mont. 306,163 P. 470; Molt v. Northern P. Ry. Co., 44 Mont. 471,120 P. 809.) The rule under the federal Act is well established that in cases not involving the violation of some Act enacted for the safety of employees, the doctrine is available. (Seaboard AirLine R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062,34 Sup. Ct. Rep. 635.) The doctrine of this case has *Page 315 been approved in Montana. (Prezeau v. Davis, 67 Mont. 523,216 P. 773.)
Under the doctrine of the federal cases which control in cases arising out of the federal Act, appreciation of danger is presumed from knowledge of it. (Cincinnati, N.O. T.P. Ry. Co. v. Thompson, 236 Fed. 1, 149 C.C.A. 211; Standard Oil Co. v.Martin, 21 F.2d 912; Roberts on Carriers, par. 836.) The doctrine of assumption of risk extends also to the negligence of a fellow-servant. (Roberts on Interstate Carriers, par. 833;Chesapeake O. Ry. Co. v. Deatley, 241 U.S. 310,60 L.Ed. 1016, 36 Sup. Ct. Rep. 564; Toledo etc. Ry. Co. v. Allen,276 U.S. 165, 72 L.Ed. 513, 48 Sup. Ct. Rep. 215.) Under those circumstances of this case, the situation being obvious, it was plaintiff's duty to keep in the clear, and he assumed the risk of injury resulting from his failure to do so. (Norwood v. St.Louis etc. Ry. Co., (Mo.App.) 296 S.W. 222; Torgerson v.Minneapolis etc. Ry. Co., 49 N.D. 1096, 194 N.W. 741; ArkansasPortland Cement Co. v. Taylor, 179 Ark. 915,18 S.W.2d 904.) This is an appeal from a judgment of nonsuit, in an action brought under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-59) to recover damages alleged to have been sustained by plaintiff, during the course of his employment by defendants, by reason of the negligent act of a fellow-servant.
The complaint, in describing the occurrence which resulted in plaintiff's injury, alleges in substance that plaintiff and a fellow-servant were unloading ties from a gondola car, and while plaintiff was in a deep depression in the middle of the car and was in the act of stooping over to pick up a tie, the other servant, who was close to the top of the pile of ties which was racked about ten feet high above the floor of the car, negligently failed to appreciate or to look out for the plaintiff and negligently failed to appreciate that the *Page 316 ties were partly frozen together, and violently pushed on the top of the ties racked on one end of the car, and being seven or eight feet in altitude, causing one of the ties to give way and glance over the others in the pile and strike plaintiff.
A general demurrer to the complaint having been overruled, an answer was interposed denying the allegations of the complaint and pleading affirmatively assumption of risk and negligence upon the part of the plaintiff, which caused the injury. There was a reply to the affirmative allegations.
When the case came on for trial, counsel for plaintiff in his opening statement told the jury that plaintiff would show that at the time of the injury he was in a stooping position on the floor of the car in the view of the other employee who thereupon negligently pushed over an upright tie standing on end on the side of the car, which tie was partly frozen to another tie standing alongside of it, and thus threw one or two ties against the plaintiff, causing the injury. Defendants' counsel thereupon objected to the introduction of any evidence, first, for the reason that the complaint does not state facts sufficient to constitute a cause of action; and, second, for the reason that, according to the statement of counsel, the facts which he proposed to present were fatally at variance with the allegations of the complaint. The court overruled the objections.
1. We do not think it is worth while to enter upon a detailed analysis of the complaint. After considering it as a whole, we think that it is not vulnerable to a general demurrer.
2. As to the variance. The proof followed the general line of counsel's opening statement. It appears that the sides of the car extended up four or five feet above the floor. Ties had been placed on end for the purpose of permitting the piles of ties to extend above the sides and ends of the car. There were four of the piles about eight feet high. In unloading, the plaintiff and his coemployee started on the second pile from the east end of the car, throwing the ties off upon the ground. From time to time they took down the ties standing on end at the south side of the car (those in front of them). *Page 317 After the pile had been unloaded to the level of the side of the car, the method employed was for the plaintiff to lift one end of the tie and his partner the other, then pushing the tie over the side of the car. At the time of the injury to plaintiff, all the ties standing on end in front of plaintiff and his partner had been taken down and unloaded, but those back of the two (on the north side) were still standing on end and were frozen together. When the pile upon which the two were working had been unloaded so that only one tie was left on the floor of the car, plaintiff stooped down to pick it up, supposing that his partner was doing the like at the other end. But instead of doing that, his partner, without warning plaintiff, was prying the standing ties from the side of the car with a bar and instantly one of these ties fell upon plaintiff. Plaintiff had participated in work of this kind "probably a thousand times" and was entirely familiar with it, and he had frequently seen his coemployee put the bar back of the ties and pry them loose.
At all times during the progress of the trial defendants objected to the reception of this evidence on the ground that it varied from the complaint. When plaintiff closed his case, defendants moved for a nonsuit; plaintiff's counsel then asked leave to amend the complaint to conform to the proof. The court denied the request "in view of the great variance existing between the allegations of the complaint and the proof as adduced."
"Actionable negligence arises only from a breach of legal[1] duty, and to state a cause of action for damages resulting from negligence, it is necessary that the complaint disclose the duty, the breach, and the resulting damages. The facts, and not legal conclusions, must be stated, and it is therefore necessary to set forth sufficient facts from which it can be said, as a matter of law, that the defendant owed to the injured party a duty arising from some legal relation existing at the time of the injury." (Fusselman v. Yellowstone Valley etc. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 P. 473, 476.) *Page 318
The plaintiff must, of course, stand or fall upon the cause of[2] action stated in his complaint. (Pierce v. Great Falls Canada Ry. Co., 22 Mont. 445, 56 P. 867.) He is required to state his cause in ordinary and concise language. (Sec. 9129, subd. 2, Rev. Codes 1921.) The facts must be "stated by direct averment so that the party who is to answer may understand the specific acts of remissness with which he is charged and that material issues may be framed for trial." (Stricklin v.Chicago, M. S.P. Ry. Co., 59 Mont. 367, 197 P. 839, 840.) The pleader must confine his proofs within the cause of action he states; he may not go beyond the material allegations of his pleading, for it would be folly to require the plaintiff to state his cause of action, if in the trial he could abandon the grounds stated and recover upon others which are substantially different from those alleged. (Forsell v. Pittsburgh Montana CopperCo., 38 Mont. 403, 100 P. 218.) If this were not so, the very purpose of pleadings would be destroyed, and, instead of the complaint apprising the defendant of the proof which he would be called upon to meet, it would become a device to entrap him. (Flaherty v. Butte Elec. Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 P. 416.)
In the trial of lawsuits variances between pleading and proof[3, 4] are certain to occur, as long experience has shown. Hence, the Code prescribes rules upon the subject, and, in so doing, with the design of preventing mistrials as a result of variances between the pleading and proof, looks to the substance rather than to the form. Material variances only are regarded with gravity. Immaterial variances are deemed of slight consequence. Except that the sections of the 1921 instead of the 1907 Codes are given, the following is quoted from the opinion of Mr. Justice Holloway in Ryan Co. v. Russell, 62 Mont. 596,161 P. 307, 308: "Our Codes recognize three degrees of disagreement between pleadings and proof. A material variance is one which actually misleads the adverse party to his prejudice in maintaining his action or defense upon the merits. (Sec. 9183, Rev. Codes 1921.) An *Page 319 immaterial variance is a discrepancy between the pleading and proof of a character so slight that the adverse party cannot say that he was misled thereby. (Sec. 9184.) A failure of proof results when the evidence offered so far departs from the cause of action pleaded that it may be said fairly that the allegations of the pleading in their general scope and meaning are unproved. (Sec. 9185.) If the variance is a material one, the court should permit the pleading to be amended, upon such terms as may be just. (Sec. 9187.) If the variance is immaterial, the court may direct the facts to be found according to the evidence, or may permit the pleading to be amended without the imposition of terms. (Sec. 9184.) If there is a failure of proof, of course there is no ground for amending, and the offending party is out of court."
If there is such a divergence between the issues tendered by plaintiff and the evidence that it cannot be said that plaintiff has proved in substance the cause of action alleged, there is a variance which amounts to failure of proof. (Gregory v.Chicago, M. S.P. Ry. Co., 42 Mont. 551, 113 P. 1123.)
It is often difficult to determine whether a variance is or is not material. Clearly it is only where the divergence between the allegations of the complaint and the proof are substantial that a material variance can be said to exist. If the divergence is of detail rather than of substance and the proof sustains the general scope and meaning of the complaint, the variance is not material. (Milwaukee Land Co. v. Ruesink, 50 Mont. 489,148 P. 396.) When there is doubt, the determinative question is: Has the pleader's adversary been misled to his prejudice in maintaining his cause of action, or defense, upon the merits?
When the allegations of the complaint and the proof in this[5] case are brought to an ultimate analysis, it is seen that the real variance between the complaint and the proof is that it is alleged in the complaint that the fellow-servant dislodged a tie from the top of the pile which hit plaintiff, when in fact the fellow-servant dislodged the tie from the side of the car which fell and hit plaintiff. We think the *Page 320 variance here was no greater, substantially, than it was inRobinson v. Helena Light Ry. Co., 38 Mont. 222,99 P. 837, 842; Wilcox v. Newman, 58 Mont. 54, 190 P. 138, orStevens v. Hines, 63 Mont. 94, 206 P. 441. In the RobinsonCase this court said: "It does not appear that the defendant was misled so that it did not have present any witness that it would otherwise have had, or that counsel was surprised in the least. They did not make this contention at the trial, but only that the variance was substantial."
In the motion for nonsuit counsel did not suggest surprise at the alleged variance, nor that defendants had been actually misled in maintaining their defense on the merits by having to meet issues not pleaded. In view of the proof, it cannot be held that the variance was material within the meaning of section 9183 of the Codes. (Stevens v. Hines, supra; Poindexter OrrLive Stock Co. v. Oregon Short Line R. Co., 33 Mont. 338,83 P. 886; Frederick v. Hale, 42 Mont. 153, 112 P. 70;Rice v. Chicago, M. S.P. Ry. Co., 59 Mont. 570,197 P. 999; Peabody v. Northern Pacific Ry. Co., 80 Mont. 492,261 P. 261.)
Under the conditions shown, the court should have directed the trial to proceed. In the interest of accuracy it might have permitted the amendment sought in accordance with section 9184, supra.
3. But counsel for defendants insist that the judgment of nonsuit was proper for the reason that the facts proved by plaintiff are not sufficient to show negligence.
"Negligence is the failure to do what a reasonable and prudent[6] person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done." (Birsch v. Citizens' Elec.Co., 36 Mont. 574, 93 P. 940, 942; Zanos v. Great NorthernRy. Co., 60 Mont. 17, 198 P. 138.)
Under the circumstances, did plaintiff's fellow-servant fail to exercise that degree of care which ordinary prudence required of him? *Page 321
Plaintiff and his coemployee were fellow-servants employed by[7, 8] the defendants in interstate commerce, and if plaintiff was injured by the negligence of his fellow-servant the defendants are liable. The federal Employers' Liability Act abrogates the common-law fellow-servant rule, and places the negligence of a coemployee on the same basis as the negligence of the employer. (Chesapeake Ohio Ry. Co. v. De Atley,241 U.S. 310, 60 L.Ed. 1016, 36 Sup. Ct. Rep. 564; Illinois Cent.R.R. Co. v. Skaggs, 240 U.S. 66, 60 L.Ed. 528, 36 Sup. Ct. Rep. 249; Stevens v. Hines, supra.)
According to the testimony, plaintiff and his partner had been engaged in throwing the ties from the car, one lifting each end of the tie. Plaintiff said: "When we came to the last tie of the pile I was stooping down to pick it up and waiting for the Italian to take care of his end of the tie and I glanced around to see if he was doing his part. Instead I saw him barring the standing-up ties with a bar he had in his hand, as the ties were frozen and he was using a bar to pry them loose, and instantaneously the ties fell on me." If this is a true recital of what took place, and it must be accepted as true, the accident would not have happened at all but for the act of plaintiff's fellow-servant.
The question whether the plaintiff's fellow-servant was or was not negligent should have been submitted to the jury under appropriate instructions. (Stevens v. Hines, supra; Puckett v. Sherman Reed, 62 Mont. 395, 205 P. 250; Chapman v.United States Express Co., 192 Mich. 654, 159 N.W. 308;Harsen v. Northern P. Ry. Co., 139 Wis. 186, 120 N.W. 826;Vannest v. Missouri, K. T. Ry. Co., 181 Mo. App. 373,168 S.W. 782; Baltimore Ohio Ry. Co. v. Belinski, 106 Md. 452,67 A. 249.) The employee, while engaged in interstate commerce, does not agree, as between himself and his employer, to assume the risk of the negligence of his fellow-servant. (Chesapeake Ohio Ry. Co. v. De Atley, supra; San Pedro, L.A. S.L.R.Co. v. Brown, 258 Fed. 806, 8 A.L.R. 865, 170 C.C.A. 100.) *Page 322
The judgment is reversed and the cause is remanded for a new trial.
ASSOCIATE JUSTICES FORD and ANGSTMAN concur.
JUSTICES MATTHEWS and GALEN, being absent, did not hear the argument and take no part in the foregoing decision.