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[60 Mont. 8.]

Notwithstanding the youth of the plaintiff, he is chargeable [1] equally with the defendant with the obligation of refraining from violation of penal statutes or ordinances. And where the parties are in pari delicto, a recovery may not be had by the plaintiff for his own misconduct. Section 6192, Revised Codes, provides: "Between those who are equally in the right or equally in the wrong, the law does not interpose." (See, also, Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 Pac. 441, and Kallio v. Northwestern Improvement Co., 47 Mont. 314, Ann. Cas. 1915A, 1228, 132 Pac. 419.) The leading case applying the principle involved is that of Butterfield v. Forrester, 11 East, 61, 103 Eng. Reprint 927, wherein Lord Ellenborough, C. J., said: "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right." That was an action on the case for obstructing a highway by means of which the plaintiff, who was riding along the road at excessive speed, was thrown down with his horse and injured.

It is the general rule that the violation of a penal statute [2] or ordinance by one resulting in injury to another is negligence per se. (Watts v. Montgomery T. Co., 175 Ala. 102, 105 South. 471; Thompson's Commentaries on the Law of Negligence, sec. 10; Osterholm v. Boston & Mont. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226; Melville v. Butte-Balaklava Copper Co., supra.) But this rule fails of application where the parties are in pari delicto. (Melville v. ButteBalaklava Copper Co., supra; Thompson's Commentaries on the Law of Negligence, sec. 204; Kallio v. Northwestern Improvement Co., supra.)

We think the rule laid down by Mr. Chief Justice Brantly, [3] speaking for this court, in the case of Melville v. ButteBalaklava Copper Co., supra, conclusive. It is there held: "If a violation of the statute by the employer is negligence,

[60 Mont. 8.]

it is equally so on the part of the employee; and if the disobedience on the one hand is the proximate cause of the injury, so the dereliction, on the other hand, must be regarded as a contributing proximate cause; for the disobedience is concurrent, and the injury is the result of the concurrent causes which operated to the same end. In such a case, the employee cannot recover, because, in alleging the injury, he must, of necessity, allege his own fault. It is a general rule that an action never lies when the plaintiff must base his claim, in whole or in part, on the violation of a criminal or penal law of the state (Lloyd v. North Carolina R. R. Co., 151 N. C. 536, 45 L. R. A. (n. s.) 378, 66 S. E. 604; Nottage v. Sawmill Phoenix (C. C.), 133 Fed. 979; McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119; Louisville etc. Ry. Co. v. Buck, 116 Ind. 566, 9 Am. St. Rep. 883, 2 L. R. A. 520, 19 N. E. 453; Little v. Southern Ry. Co., 120 Ga. 347, 102, Am. St. Rep. 104, 66 L. R. A. 509, 47 S. E. 953; Voshefskey V. Hillside Coal & I. Co., 21 App. Div. 168, 47 N. Y. Supp. 386; Thompson's Commentaries on the Law of Negligence, secs. 10, 204, 249).”

While the plaintiff bases his claim for damages upon a violation of the city ordinances by the defendant, yet from the pleadings as well as the evidence introduced at the trial, it appears that plaintiff's claim of damages is attributable to his own violation of such ordinances, and therefore he is not entitled to recover.

It is not necessary for decision in this case to determine the question of the proximate cause of the injury, either as a matter of law or of fact, further than to say, if the plaintiff had not lighted the firecracker and discharged it in violation of the ordinance, he would not have been injured thereby.

The fact alone that the act of the defendant was in violation of the ordinance does not afford ground for the recovery of damages for the injury complained of, unless it shall, in addition, be affirmatively made to appear (1) that the plaintiff was free from fault, and (2) that defendant's act was

the proximate cause of the injury. Neither party having obeyed the city ordinance, and the accident being due to such. nonobservance, they are in pari delicto and the plaintiff is not entitled to recover. The law leaves them where it finds them, equally in the wrong, although injury resulted to the plaintiff from their combined wrongs.

For the reasons stated, the judgment and order appealed from are reversed, with directions to the district court to enter judgment in favor of the defendant.

Reversed and remanded.

MR. CHIEF JUSTICE BRANTLY and ASSOCIATE JUSTICES REYNOLDS, COOPER and HOLLOWAY concur.

Rehearing denied May 31, 1921.

ZANOS, RESPONDENT, V. GREAT NORTHERN RY. CO., APPELLANT.

(No. 4,356.)

(Submitted April 19, 1921. Decided May 9, 1921.)

[198 Pac. 138.].

Personal Injuries-Master and Servant-"Negligence"-Evi dence Admissibility - Instructions - Quotient Verdicts -New Trial.

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Personal Injuries-Master and Servant-Quotient Verdict-New Trial. 1. Where the jurors in a personal injury action agreed among themselves that in arriving at a verdict each of them should write the amount he deemed plaintiff entitled to upon a slip of paper, the several amounts to be added by one of their number, acting as clerk, and the sum total divided by twelve, the amount thus arrived at to stand as their verdict, the result was a quotient verdict entitling defendant to a new trial.

1. Validity of chance or quotient verdicts, see notes in 16 Ann. Cas. 910; Ann. Cas. 1917C, 1224.

60 Mont.-2

[60 Mont. 17.]

Same "Negligence"-Definition.

2. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person under the existing circumstances would not have done.

Trial-Instructions-Review-Technical Niceties.

3. In reviewing instructions given to the jury substance should not be sacrificed to undue nicety in phraseology or too critical exactness in the use of words.

Same-Instructions Deemed Deficient-Duty of Appellant.

4. Where an instruction in appropriate language calls the attention of the jury to the subject matter to be considered and fairly states and presents the questions to be determined, it is suffi cient, and if in such a case a more specific instruction is required by a party, it is his duty to tender one or a modification of the one given, a demand that the court do so being insufficient. Personal Injuries-Impairment of Earning Capacity-Faulty Instruction.

5. An instruction that if the evidence made it appear that plaintiff's earning capacity had been impaired by reason of his injuries, the jury should compensate him for such impairment, without stating a rule or guide for arriving at the amount to be awarded in that behalf, was faulty.

Same-Evidence-Admissibility Under Pleadings.

6. Under the allegation of the complaint, after more minutely describing plaintiff's injuries, that his body had been "otherwise injured," evidence that he had sustained a rupture was admissible, over the objection that such injury was not within the pleadings.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge.

ACTION by Socrates Zanos against the Great Northern Rail way Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Re versed.

Messrs. Veazey & Veazey and Mr. H. C. Hopkins, for Appellant, submitted an original and a supplemental brief; Mr. I. Parker Veazey, Jr., argued the cause orally.

Messrs. Maury & Melzner and Mr. John Georgiades, for Respondent, submitted a brief.

MR. CHIEF COMMISSIONER POORMAN prepared the opinion for the court.

This is an appeal by defendant from an order overruling its motion for a new trial, and also from a judgment entered

[60 Mont. 17.]

against it on a verdict for plaintiff, in an action for damages resulting from personal injuries alleged to have been sustained by plaintiff, then an employee of defendant company, and caused by the alleged negligence of other employees of defendant.

So far as material to the questions here considered, the facts alleged are to the effect that the plaintiff and other employees of defendant were going to their work upon a roadbed of defendant company upon a hand-car, provided for that purpose by the defendant, when they were overtaken by a gasoline car under the control, management and operation of the section foreman, conveying other employees engaged in the same kind of work, to the place of labor. It is alleged that the gasoline car violently collided with the hand-car; that plaintiff was thrown off across the rails, both cars passing over him, "striking and injuring the plaintiff's back all the way up near the spinal column and thereby mashing the plaintiff's chest down against the rail, so that they broke plaintiff's bottom ribs on the right side and mangling and injuring said plaintiff's stomach and back and liver, and mashing plaintiff's knee against the rail and otherwise injuring the body of this plaintiff," and it is alleged that all this was caused by the negligence of the defendant and its servant.

The specification of errors contains the assignment that [1] "the verdict returned was a quotient verdict." In support of its motion for a new trial, the appellant filed in the district court the affidavits of six of the jurors as to the method pursued in reaching the verdict. Their affidavits are lengthy, are substantially the same in form, and do not vary materially in substance. The juror J. J. Connolly, in his affidavit, states that after the case was submitted to the jury, he was selected as the foreman thereof; that the jury first determined by a vote that a verdict for damages in some amount should be returned for the plaintiff. Juror William Molthen then suggested that in arriving at the amount of the

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