178 P. 68 | Utah | 1919
This is an action for personal injuries sustained by plaintiff while trying to ride underneath one of defendant’s railroad cars at Helper station, Utah. It is alleged by plaintiff, in substance, that he boarded said car for the purpose of riding thereon to Salt Lake City at a time when the train to which the ear was attached was standing still; that he se
Defendant, answering, denied these allegations, and further alleged that plaintiff surreptitiously crawled under said car while the train was moving; that he attempted to climb upon the rods or beams underneath the car for the purpose of stealing a ride; that while so riding and trespassing upon said car in some manner unknown to defendant plaintiff slipped and fell to the ground, where he was run over and injured. Defendant also alleged that plaintiff was guilty of contributory negligence.
The jury to whom the case was tried found for the defendant, no cause of action. From the judgment entered thereon plaintiff prosecutes this appeal. Certain instructions given by the court and evidence admitted over plaintiff’s objection are assigned as error.
It is not disputed that at the time of the injury plaintiff was a trespasser and was trying to steal a ride on defendant’s train. Neither is it contended that defendant company owed plaintiff any duty except to use reasonable care to avoid injuring him after it discovered his peril. The evidence, although conflicting as to some of the material facts, • is, nevertheless, as far as material here, limited entirely to what was said and done within a few brief moments of time.
On the other hand, the testimony of defendant’s witnesses tends to show that the train was moving when plaintiff went under the car; that he was ordered by the traveling engineer, who happened to be present, to stay out from under the car; that the plaintiff ha’d not secured a position where he could ride with safety; that there was no position under that particular car where a person could .ride with safety unless he had ample time to place himself in such position while the car was standing still. *
The principal errors complained' of relate to instructions given to the jury. The instructions given by the court which are in any manner material to the issues involved. are as follows:
“(11) The defendant was under no duty to station men
“ (12) All persons who board the railroad company’s trains without authority are merely trespassers, to whom the company owes no duty until their presence is actually discovered, and then only to abstain from willfully or wantonly inflicting injuries on them, or to use ordinary care to avoid injuring them if it actually discovers them in a position of peril. A railroad company is not under any duty to discover the presence of such persons on its trains. No obligation exists on the part of the members of the train crew to be on a lookout for such trespassers. When the trainmen actually acquire knowledge of the presence of such trespassers on the trains their only duty is to abstain from wantonly and willfully inflicting injuries on them, or, if they actually see them in a position of peril, to use ordinary care to avoid injuring them. ’ ’
“ (15) It is not every employee whose knowledge is imputable to the railway company. The mere fact that some employee may have stood beside the train and seen the plaintiff go beneath the °car does not necessarily mean that the defendant knew of his presence there. It is only those employees who in the scope of their employment in the movement and management of this particular train knew of the plaintiff’s presence under the same whose knowledge can be said to be the railway company’s knowledge. I therefore instruct you that you cannot charge the railroad company with knowing what some employee may have known as to the plaintiff’s presence under the train, if such employee had nothing to do with the management or movement of this particular train.
“ (16) If you should find that some of the defendant’s employees did the things charged in the complaint, this does not necessarily mean that the defendant is liable. Before you can charge the, defendant with responsibility you must find that the employee, if guilty of the things charged in the
“(17) The defendant is not charged with omitting to do anything to avoid harm to the plaintiff, but with doing things which defendant ought not to have done, viz. by threats and intimidations forcing him to leave the train while going at a dangerous rate of speed and firing a pistol shot; and in this connection I instruct you that, if you find that the defendant is not guilty of the things charged, you have no right to return a verdict against it on the theory that it was at fault in not stopping the train the moment some employee standing beside the train saw the plaintiff start to go under it.
“ (18) If you should find that the plaintiff was ordered by some proper employee of defendant’s to leave the train as he was in the act of getting under it, and before he had succeeded in gaining a position of safety, and that in endeavoring to make his exit pursuant to such command he was run over and injured, without any pistol shot being fired, and without any threats of personal violence being made which would cause him to lose his self-control, then I instruct you that he cannot recover; for the defendant had the right, under such circumstances, to command him not to carry out his intended trespass, and the law will not impute to a command given under such circumstances wantonness or willful intention to inflict injury on defendant’s part. Such a warning amounts to no more than what the law itself commands. While the defendant had no right to injure him wantonly or willfully in eviciting him from the train, it did have the right to tell him to desist in his efforts if he was then attempting to secure a position to ride under the train, and if, in attempting to make his exit pursaunt to such warning, he was run over, his own negligence in attempting to steal a ride will bar any recovery.
“ (19) The fact that the train was not equipped in such a manner that the rear engine had no control over the train’s
Appellant excepts to instruction No. 11 on the grounds that “the matter is not referred to in the issues1 in the case.”
Appellant also excepts to instruction No. 15, and assigns as grounds for the exception that the instruction excluded from consideration the traveling engineer as an employee of defendant, thus limiting the question of the defendant’s liability entirely to what was done and said by the trainmen operating the train. Exception is also taken to instruction No. 16 for substantially the same reason. Appellant especially excepts to the latter part of said instruction, which reads as follows: “I instruct you that there is no evidence which would warrant you in finding that any employee outside of the crew of this particular train had authority to expel trespassers. ’ ’
Appellant’s position, stated in our own language, is that there was substantial evidence that the traveling engineer, Mr. Snyder, was present at the time of the accident; that he, by virtue of his position, was authorized and empowered to expel trespassers from the train; that on the occasion in question he ordered plaintiff to get out from under the car while the train was in motion and running at a rate of speed which rendered it dangerous for plaintiff to attempt to leave the train; that therefore the instructions complained of were erroneous, and especially the language quoted from instruction No. 16. .
Respondent resists this contention on several distinct grounds: (1) That, admitting that Snyder ordered the plaintiff to get out from under the car while the train was in motion, there is no evidence that the plaintiff heard the order, or that he was in any manner influenced thereby, and that therefore any order given by Snyder was not the proximate cause of the injury; (2) that the plaintiff himself was partially responsible for the giving of the instruction complained of by other instructions given at his request; and (3) that the instructions complained of were correct, as there was ho evidence that Snyder had authority to expel trespassers from the train.
These contentions will be disposed of in the order above stated.,
In order to determine whether or not Snyder’s order was the impelling cause or had any connection whatever with plaintiff’s attempt to leave the train, it becomes necessary to examine the evidence bearing upon that question. The plaintiff, testifying in his own behalf, stated, in substance, that after he had crawled under the car and secured a position where he could ride he saw a man running after the train. All he could see was the man’s pants. The man in a loud voice said to plaintiff: “Get the hell out of there — get out quick; if you don’t get out, I’ll make you get out.” This language, together with a pistol shot about the same time, frightened plaintiff, in consequence of which he attempted to leave the car and was run over and injured. After plaintiff was injured he was removed to some point near the car. The shock of the injury rendered him unconscious. A large crowd gathered around him. On regaining consciousness he says he saw a man in blue uniform with metal buttons. He bad on a flat cap with a brakeman’s metal badge. The man said, “I told him to get out of there.” Plaintiff says he heard the man’s voice, and recognized it as the voice that ordered him to get out from under the car. The plaintiff also introduced the testimony of Alfred Schmidt, who claimed to have witnessed the accident. Schmidt said:
“I heard a man who was dressed in a blue uniform with metallic badge and metallic strip on his cap marked ‘Brakeman,’ who had been aiding and working in the preparation of said train to leave, and said train started while said brakeman was at a distance of about seventy feet from me. He looked under the car and spoke to the plaintiff, who was seated as heretofore described, and while the train was in motion and gaining in speed ordered and said to plaintiff to
The foregoing testimony of plaintiff and Schmidt is substantially all the testimony offered by plaintiff relating to the identity of the man who ordered him off the train.
Counsel for appellant, in his opening statement to the jury, relied on this testimony, and adopted the theory that it was a brakeman who ordered plaintiff to. get off the train.
This theory of plaintiff is further' emphasized in two of plaintiff’s requests to instruct which were given to the jury. These instructions are numbered 4 and 5, and read as follows:
“ (4) It is admitted that Joe Bergman was upon a car of the defendant company. He was himself negligent in being there. He was a trespasser. Under those circumstances, the company, or its employees who conducted its train, owed him no duty until they discovered him in peril, if he was. When they did discover him in peril, if he was in peril, they owed to him the duty of reasonable diligence to avoid injuring him while in such perilous position.
“ (5) The court instructs you that the burden of proof in this case is on the plaintiff to show that when he was on the ear- that he was discovered by the trainmen in charge of the train, and that it was known to the men in charge of the train that he could not get off the train without increasing his danger to injury, and that the said trainmen failed to use reasonable diligence to avoid the injury; and, unless you believe this from all the evidence, by a preponderance thereof, then you shall find for the defendant.”
As will be seen, the instructions refer repeatedly to the trainmen in charge of the train. There is no avoiding the conclusion, especially in view of the evidence to which we have referred, that the plaintiff in requesting these instructions had in mind the men who were charged with the duty of moving the train from one point to another; the trainmen, in fact, consisting of the conductor, engineer, fireman, 'and brakemen.
Finally, appellant excepts to the admission of certain testimony admitted over plaintiff’s objection. The plaintiff having testified, as we have shown, that a brakeman ordered him off the train, the defendant called a witness to the stand who claimed to have had a conversation with plaintiff shortly after he was injured, in which the plaintiff detailed the .circumstances relating to the accident. After relating what the plaintiff told him, respondent’s counsel propounded to the witness the following question: “When he was telling you as to how he got hurt did he make any statement to the effect that any brakeman ran alongside the train and ordered him off?” This was objected to by appellant, and the ruling of the court permitting the witness to answer is assigned as error.