judgment will be affirmed, otherwise a new trial will be awarded. Costs allowed to respondent. [2] Appellant, however, insists that he is entitled to have the case reviewed on its merits by virtue of the fact that he has appealed from the order overruling motion for new RICE, C. J., and BUDGE, MCCARTHY, trial. However, on appeal from order overand DUNN, JJ., concur. (59 Mont. 434) ruling motion for new trial, it is necessary that the record show the judgment roll, which necessarily includes the judgment. Rev. Codes, §§ 6799, 7114, 7115; Minneapolis Threshing Machine Co. v. Stanford Merc. Co., EASTON v. WESTERN LIFE & CASUALTY 197 Pac. 993, recently decided and not yet CO. (No. 4317.) [officially] reported. It has been decided by (Supreme Court of Montana. April 6, 1921.) An appellate court cannot consider an appeal from a judgment which is not before it, so, where the transcript did not contain a copy of the judgment appealed from, the appellate court is without jurisdiction to review and dispose of the cause on the merits. The motion to dismiss the appeals is granted. Dismissed. BRANTLY, C. J., and COOPER, HOLLOWAY, and GALEN, JJ., concur. (No. 4303.) (59 Mont. 342) 2. Appeal and error 597 (2)-Where transcript did not contain judgment, appeal from order denying new trial cannot be considered. Although the appeal was from the order denying new trial as well as the judgment, yet, STONES v. CHICAGO, M. & ST. P. RY. CO. where the transcript contained no copy of the judgment, no question is properly before the appellate court for consideration; for on appeal from an order overruling a motion for new trial it is under Rev. Codes, §§ 6799, 7114, 7115, necessary that the record show the judgment roll, which necessarily includes the judgment. Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. Action by Carl F. Easton against the Western Life & Casualty Company. From a judgment for plaintiff, and an order overruling its motion for new trial, defendant appeals. Appeals dismissed. Joseph H. Griffin, of Butte, for appellant. REYNOLDS, J. Plaintiff brought action upon an accident policy against defendant for recovery of damages for injuries sustained. Defendant appeals from the judgment for plaintiff and order overruling motion for a new trial. (Supreme Court of Montana. March 21, 1921. - To make out a case against a master for injuries to his servant, it must appear from the complaint and evidence that defendant was negligent, that plaintiff was injured, and that the negligence charged was a proximate cause of the injury. 2. Master and servant 258 (9) Cause of injury to section hand moving loaded hand car held insufficiently alleged. In a section hand's action for injuries sus tained while placing a hand car loaded with tools on a track, in doing which one of the other employés fell and pushed the car against plaintiff, the complaint, failing to allege that the overloading of the car caused the injury, held insufficient to sustain a recovery for the foreman's negligence in ordering the men to move the car with the added load of the tools. 3. Master and servant 265 (3) of section hand's coemployés held not to raise presumption of negligence. Stumbling tools was pushed against him by the stumbling of another employé, the mere fact that such other employé stumbled held not to raise any presumption of negligence as the cause of injury. [1] Respondent has moved this court to dismiss the appeals for the reason that the transcript does not contain any copy of the In a section hand's action for personal injudgment. It is elementary that an appel-juries, sustained when a hand car loaded with late court cannot consider an appeal from a judgment which is not before it. This court has held that, when the transcript does not contain a copy of the judgment on appeal from the judgment, it has no jurisdiction to review and dispose of the cause on its merits. State ex rel. Bank v. Taylor, Justice of the Peace, 33 Mont. 364, 83 Pac. 597; Lisker v. O'Rourke, 28 Mont. 129, 72 Pac. 416, 755. The nonexistence of legal connection between the negligence and the injury is predica For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (197 P.) ble whenever, for aught that appears, the acci- [ant the said accident occurred to this plaindent might have happened even if the negli- tiff." gence had not occurred. Appeal from District Court, Fergus County; H. Leonard Dekalb, Judge. Action by Henry Stones against the Chicago, Milwaukee & St. Paul Railway ComFrom a judgment of dismissal, plaintiff appeals. Affirmed. Upon the trial, in answer to an inquiry, and over the objection of defendant, plaintiff explained the occurrence as follows: "Well, in carrying the car across it was too heavy, and when one of the fellows stumbled then every one fell. Well, by my being on the low side after I stepped up on the spur, the brake struck me here and knocked me down." [1] It is elementary that in order to make out a case of this character it must be made to appear from the complaint and the evidence: (1) That the defendant was negligent; (2) that plaintiff was injured; and (3) that the negligence charged was a proximate cause of the injury. In other words, the I causal connection between the negligence alleged and the injury suffered must appear affirmatively. Glover v. Chicago, M. & St. P. Marshall & Dousman, of Lewistown, for re- Ry. Co., 54 Mont. 446, 171 Pac. 278; Allen v. spondent. pany. E. K. Cheadle and Rufus Hopkins, both of Lewistown, for appellant. HOLLOWAY, J. This action was brought to recover damages for personal injuries received by plaintiff while in the course of his employment. The trial court granted a motion for a nonsuit, and rendered judgment dismissing the complaint. From that judgment this appeal is prosecuted. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. It is perfectly apparent that whatever caused the hand car to get beyond the control of the men attempting to move it was the proximate cause of plaintiff's injury." [2] If it was the intention of plaintiff to rely upon the negligence of the foreman in ordering the men to move the car with the added load of the tools, the complaint fails to state a cause of action, for it is nowhere alleged that it was the overload which caused the injury. This is not one of the socalled "strain" cases to which class Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 500, belongs. It is not claimed that plaintiff was injured by lifting an excessively heavy load. It is difficult, if not impossible, to understand the theory of the pleader in drafting the complaint. It is alleged that plaintiff was employed by the railway company as a section hand under the direction and control of a foreman; that on the day of the accident the foreman, in violation of a rule of the company which required that the tools be removed from a hand car before the car was lifted to or from the track, negligently ordered plaintiff and his five coworkers to place a hand car, loaded with tools, upon the main track for the purpose of moving from one place of work to another; that the car with the tools upon it was too great a load for the number of men assigned to move it; that in attempting to execute the order, some of the men, other than plaintiff, negligently stumbled and fell, pushing the loaded car on and against plaintiff, causing the injuries of [3] It is alleged that while attempting to which he complains. It is further alleged lift the car upon the track "certain of the that the tools being left upon the car increas- men, other than this plaintiff, included in ed the weight thereof by about 50 per cent., said section gang carelessly and negligently and rendered an accident more likely to oc- stumbled and fell," with the result that the cur; "that the company by its said foreman car got beyond control and injured plaintiff; was guilty of carelessness, negligence, and a but there is not even a suggestion in the evilack of prudence in ordering the said hand-dence that the men who stumbled were guilty car to be moved from one track to another of negligence, and the mere fact that they without removing the tools therefrom; and stumbled does not raise any presumption of that in consequence of the said carelessness, negligence. negligence and lack of prudence of defend-] It is alleged also that the excessive weight For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes juries to live stock shipment must show loss sustained and amount thereof. rendered an accident more likely to occur,, 3. Carriers 228(1)-Shipper suing for inbut nowhere is it alleged, either directly or inferentially, that it was the excessive weight of the loaded car which caused the men to stumble, or the car to get beyond control. In other words, so far as the allegations of the complaint are concerned, the same accident would have happened with the same serious result if the car had not been loaded. In an action by a shipper of stock against a carrier for injury thereto, the burden was on him to show with reasonable certainty and by a preponderance of the evidence the loss he had sustained and the amount thereof as definitely as possible. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proxi Reynolds, J., dissenting. [4] The rule is well settled that the non-mate Cause.] existence of legal connection between the negligence and the injury is predicable whenever, for aught that appears, the accident might have happened even if the negligence had not occurred. 4 La Batt, § 1570. [5] The plaintiff failed to introduce evidence proving or tending to prove that the negligence charged was a proximate cause of his injury, and the court properly granted a nonsuit. In principle, the case is ruled by the decision in Markinovich v. Northern Pac. Ry. Co., 55 Mont. 139, 174 Pac. 183. The judgment is affirmed. Affirmed. Appeal from District Court, Yellowstone County; Charles H. Taylor, Judge. Action by George B. Kirby against the Oregon Short Line Railroad Company for damages to a shipment of live stock. Judgment for plaintiff, and from the judgment and the denial of a new trial, defendant appeals. Affirmed. Smith, Harrington & Wines, of Butte, for appellant. E. E. Enterline, of Billings, and D. C. Ed BRANTLY, C. J., and REYNOLDS, COOP- wards, of Minneapolis, Minn., for respondent. ER and GALEN, JJ., concur. (59 Mont. 425) HOLLOWAY, J. This action was brought to recover damages alleged to have been caused by the negligence of the railroad company in transporting 1,342 head of cattle from Riverside, Or., to Billings, in this KIRBY v. OREGON SHORT LINE R. CO. state. The plaintiff recovered judgment in (No. 4310.) (Supreme Court of Montana. April 4, 1921.) I. Carriers 228(1) Burden of showing breach of duty to provide watering facilities for cattle is on shipper. A carrier is required to make adequate provision for watering cattle shipped, and the burden of showing the breach of such duty is on the shipper. 2. Carriers 217 Failure to provide adequate watering facilities for stock held not "proximate cause" of loss where owner in charge neglected opportunity to water them. In an action by a shipper of stock for damages and shrinkage, due to defendant's failure to furnish adequate watering facilities, in that out of five pens wherein the cattle were unloaded only four were provided with such facilities, but wherein it appeared plaintiff, who was in charge of his stock, had ample opportunity to transfer them to vacant pens before reloading and to provide them with water, held that his failure to do so could be attributed only to his own neglect or misconduct, and that the negligence of the company was at most the remote, and not the proximate, cause of the loss, so that he could not recover; the proximate cause being that which, in a natural and continuous sequence, unbroken by any new independent cause, produces the injury, and without which it would not have occurred. the sum of $1,870.80, and defendant appealed therefrom, and from an order denying its motion for a new trial. The record discloses that on May 10, 1916, the defendant company furnished a cattle train of 38 stock cars for the shipment of these cattle; that the cattle were loaded dur ing the morning of that day, and the jour ney commenced soon after noon; that during the evening of the 11th the cattle were unloaded at Lima, Mont., for feed, water, and rest, and were reloaded and the journey resumed about noon on the 12th; that at Lima one steer was found dead, three others were dead when the train reached Billings, and a fifth died immediately after the cattle were unloaded there. It is the contention of plaintiff that at a point near Vail, Or., the train was negligently subjected to a violent jolt, which caused some of the cattle to be severely bruised and otherwise injured, with the result that the five died and the others were impaired in value, and that at Lima 2 head were negligently permitted to escape and be lost to plaintiff; that the railroad company negligently failed to provide adequate facilities for watering the cattle at Lima, and in consequence thereof about 250 head were not watered there or at all during the entire journey of approximately 1,000 miles, which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (197 P.) resulted in unnecessary shrinkage, loss of, ing the other pen, but nothing was done to flesh, and depreciation in value. The single assignment of error raises the question: Is the evidence sufficient to justify the verdict? For present purposes we shall assume that the evidence is sufficient to justify a finding that the 2 head of cattle were lost at Lima through the negligence of the defendant, and that these 2 animals were of the reasonable value of $120; also that the evidence supports a finding that the 5 head which died were of the reasonable value of $295, and that they died as the result of the negligent handling of the train by the defendant; also that 15 other cattle (out of a group of 70 referred to by the plaintiff) received such injuries as could have been inflicted only by the negligence of the carrier in handling its train near Vail, and that the damage to these cattle amounted to $20 per head, or $300. Without undertaking to make an analysis of the evidence upon which the foregoing assumptions are based, we content ourselves with the statement that it may be fairly said to sustain a verdict for $715. correct the defect or provide for watering the cattle in that pen; that the same condition prevailed on the morning of the 12th and until the cattle were reloaded to continue the journey; that the cattle in the fifth pen were not watered at Lima or elsewhere on the entire trip from Riverside to Billings; that the cattle in each of the four pens with watering facilities were reloaded before the cattle in the fifth pen. [1] Our attention has not been directed to any rule of law or reason which imposed upon the railroad company the duty to equip every one of the pens with watering facilities. It was required to make adequate provision for watering these cattle, but the burden of showing a breach of that duty was upon the plaintiff. Grieve v. Illinois Cent. Ry. Co., 104 Iowa, 659, 74 N. W. 192. It was developed in the evidence for defendant, and it is perfectly apparent to any one, that as soon as the reloading was commenced in the early morning of the 12th, and as each successive pen of the first four was made vacant, ample opportunity was afforded plaintiff to transfer the cattle from pen 5 to the vacant pen or pens, and provide them with an abundant supply of water, and his failure to take advantage of the oppor There is a sort of general claim made for damages in the sum of $1 per head for injuries to each of 1,265 head, but there is not any substantial evidence to support it, and it is reasonably certain from the ver-tunity can be attributed only to his gross dict returned that it was disallowed altogether by the jury. Leaving out of further account the 1,287 head mentioned, the largest single item of damages is claimed on account of the depreciation in value of 55 head (the remainder of the 70 mentioned above), occasioned by the alleged rough handling of the train near Vail and the failure of the company to furnish adequate facilities for watering these cattle at Lima. Counsel for the defendant company insist that these 55 cattle are not identified as of the 250 head which did not receive water at Lima or elsewhere on the journey, but we are inclined to accept the evidence as sufficient for the purpose. Touching the question of the adequacy of the facilities for watering the cattle at Lima, the plaintiff's own testimony discloses the following facts: The plaintiff and a caretaker in his employ were in charge of the cattle, and at Pocatello arranged to have the train stopped at Lima for feed, water, and rest; that at Lima the stock yards consisted of five stock pens into which the cattle were unloaded, the total number being divided as nearly equally as could be; that in each of four of these pens provision was made for watering the cattle, but the fifth pen, containing about 250 cattle, had no facilities for watering; that the shipment was unloaded on the evening of May 11 and water furnished to the cattle in the four pens provided with proper facilities; that complaint was made by plaintiff to the agent of the road concern neglect or willful misconduct. He was in charge of the shipment, and it was his business to see that his stock received proper care, if the facilities were available for the purpose. He could not stand upon the technical claim that the most convenient means conceivable were not provided, and rely upon his ability to recover damages from the company as compensation for the loss resulting from his own want of ordinary care. If we accept the extreme view advanced by counsel for plaintiff that the company was negligent in failing to have the fifth pen properly equipped, the question then arises: Was that negligence the proximate cause of the damage to the cattle which were deprived of water? The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which it would not have occurred. Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 100 Pac. 971, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189. The railroad company can be held liable for its failure to provide water in the fifth pen only on condition that to its lapse of duty in that respect is directly attributable the injury to plaintiff's cattle, as any given effect is to be assigned to its efficient cause. Monson v. La France Copper Co., 39 Mont. 50, 101 Pac. 243, 133 Am. St. Rep. 549; Stones v. Chicago, M. & St. P. Ry. Co., 197 Pac. 252, not yet [officially] reported. [2] From the review of the evidence above, it appears to us to be incontrovertible that [ tributory negligence, as a matter of law, by the damage to these cattle at Lima resulted, reason of his failure to water the cattle in not from the lack of water in the one pen, the one pen in which there was no water, but from the failure of plaintiff to avail when some of the pens were vacated in the himself of the facilities afforded in the oth- process of reloading, and that such failure er pens. In other words, the negligence of was, as a matter of law, the proximate cause the company was at most the remote, and of any part of the injury to the stock. It not the proximate, cause of the loss suffered, may be that it was possible to have so waterand it cannot be held responsible therefor.ed the cattle, but it does not conclusively apCausa proxima non remota spectatur. Plaintiff testified that the value of each of these 55 animals was lessened to the extent of $20. His testimony upon this feature of the case follows: * I now un "It was the bruises on the cattle, and the lack of water on the way here shrunk these cattle more than they should have shrunk; they was badly shrunken; could not say how much more than they should have been; probably 10 to 15 pounds to the head. dertake to say that the condition these cattle were in when they arrived [at Billings] was caused by the jolt and by the failure to get water at Lima. That was the sole cause of it. ✦✦✦ I figured these cattle were so much worse shape than they should have been ordinarily, and this was caused by the jolt and the scarcity of water at Lima." [3] No effort whatever was made to segregate the damages occasioned by the bruises. The jury were advised by the instructions given that recovery could be had only for such damages as resulted proximately from defendant's negligence. The burden was upon plaintiff to show with reasonable certainty and by a preponderance of the evidence the loss he had sustained and the amount thereof as definitely as possible. Carman v. Montana Cent. Ry. Co., 32 Mont. 137, 79 Pac. 690. Since the damages were shown in the aggregate, for an undefined portion of which defendant may be liable and for an unascertained balance of which it is not liable, the jury could not possibly determine the extent of its responsibility upon this branch of the case. To avoid the expense and delay necessarily incident to a new trial, the plaintiff should be permitted, if he so elects, to accept a judgment reduced to the amount which the evidence warrants. The cause is remanded to the district court, with directions to grant a new trial unless within 30 days from the filing of the remittitur plaintiff consent, in writing filed with the clerk of the lower court, to a reduction of the amount of the judgment to $715. If such consent is given, the judgment will be modified accordingly nunc pro tunc as of the date of the original judgment, and, as thus modified, will stand af firmed, and the order refusing a new trial will also be affirmed. pear that he could have done so, or, even if he could, that he was conscious of the opportunity so to do, or that his attention was called to it in any way. On the contrary, the evidence justifies the conclusion that, even up to the time that he testified on the trial, it never occurred to him that there was any such opportunity. He was asked whether or not he could not have changed the cattle from one pen to another so that all could be watered, to which he replied that he could not do so because there was not room, all pens being occupied; that it would be mixing up the cattle that should not be mixed, and that there was no way that he could drive some cattle out of one pen and put others into it. The question was not asked him as to whether or not he could have watered them in one of the other pens after such pen was emptied in the process of reloading, and we do not know what his answer to such question would have been. In my opinion, we have no right to assume that if the question had been put to him he might not have given some good reason why that could not have been done. It is evident that neither party nor the presiding judge in the trial below considered this feature of the case in any way, for the question was not raised by counsel in that court, nor has counsel suggested the question in this court. There was nothing in the answer charging plaintiff with contributory negligence in this respect, or that his failure to water the stock in this particular pen was the proximate cause of any part of the injury. The answer did not even charge that under the contract of shipment any duty rested on plaintiff to care for, feed, and water the stock, nor was the contract offered in evidence. Defendant did not make any motion for nonsuit or directed verdict; no instruction was requested by defendant as to this particular feature of the case, and no instruction was given regarding it. In the hearing before this court, appellant's contention is, not that respondent should have watered the cattle in the pen in question by transferring them to another pen after such pen was emptied in the process of reloading, but that the evidence is insuf. ficient to support the verdict because it does BRANTLY, C. J., and COOPER and GAL not show that the damage from rough hanEN, JJ., concur. REYNOLDS, J. I dissent. I do not be. lieve that plaintiff was guilty of any con dling did not occur between Lima and Bil lings, and did occur between Riverside and Ontario, that the particular cattle that were in the worst condition were not in the par |