Boyle v. Union Pacific Railroad

71 P. 988 | Utah | 1903

McCARTY, J.,

after stating the facts, delivered the opinion of the court.

It will be observed that appellant not only asked permission to amend the bill of exceptions by incorporating therein matters which appear in the reporter’s transcript of the proceedings, and omitted from the bill of exceptions, but to substitute copies of papers that were lost before the bill of exceptions was prepared, and make such copies a part of the record on appeal. A judge before whom a case has been tried may, on a proper showing, allow copies of lost papers fi> be 'substituted and incorporated into the bill of exceptions, as the record shows was done in this case, together with other ma-' terial matters that have been omitted; but this court 1 possesses no such authority. Cases appealed must be heard and decided upon the record made in the court from which the appeal is taken. 3 Ency. Pl. and Pr., p. 502; Hayne, New Trial and Appeal, sec. 271; Elliott, App. Proc., sec. 206.

Section 9, article 8, of the Constitution of this State, so far as material here, provides: “From all final judgments of the district courts, there shall be a right of appeal to 2 the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law.” The “regulations” are found in sections 3286-3290, Revised Statutes 1898. Section 3286 provides that the judge before whom a case has been tried must settle the bill of exceptions, and must sign and certify to the same. Section 3290 in part provides as follows: “If such judge, referee, or judicial officer before the bill' of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the State, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the Supreme Court may, by its orders or rules, direct.” Rule 25 of this court, so far as material in this case, provides as follows: “If any judge before whom a cause has been tried or heard is absent from the State or refuses to settle a bill of exceptions, or if no mode is provided by law for the settlement of the bill of exceptions in any case, then the bill of exceptions may be settled, allowed and certified by the chief justice, or any one of the judges of this court.” It will readily be observed that under the foregoing provisions of the Constitution and statute, and the above rule of this court, the amendment asked for by appellant can not be allowed. Aside from any constitutional or statutory restriction or court rules, it would not only be unfair to' the trial court for this court to permit amendments to be made to bills of exception after they have been signed, certified, and allowed by the judge who tried the case, but' such a practice, if followed, would open the way for vexatious delays, and in course of time lead to infinite confusion.

We will now consider the alleged errors as assigned by appellant in the order in which they are discussed in its brief.

Appellant’s first contention is that the trial court erred in overruling its motion for a nonsuit on the ground that the evidence' showed that plaintiff was guilty of contributary 3 negligence, and that such negligence consisted in running his train between Emory and Castle Eock, at the time of the accident in question, in violation of the schedule and printed rules of the company, thereby creating the necessity, if any existed, for him to go from the caboose to the head end of the train. Counsel for the appellant has devoted much time and space in his brief to the discussion of this phase of the case. The motion for a nonsuit is not based on this ground. By referring to the motion, which is set out in full in the statement of facts, it will be seen that contributory negligence is not made a basis for a nonsuit. This court bas repeatedly held that a party moving for non-suit is required to state in Ms motion the specific grounds relied on. Therefore we can not consider these alleged elements of contributory negligence, as they are raised for the first time in this court. Frank v. Min. Co., 19 Utah 35, 56 Pac. 419; McIntyre v. Ajax Min. Co., 20 Utah 323, 60 Pac. 552; Lewis v. Min. Co., 22 Utah 51, 61 Pac. 860; Wild v. Union Pacific R. Co., 23 Utah 265, 63 Pac. 886; Palmer v. Marysville Dem. Pub. Co., 90 Cal. 168, 27 Pac. 21.

It may be contended that, notwithstanding the motion for a nonsuit does not directly charge contributory negligence, it is inferred from the phraseology, as the last paragraph of the motion contains thei following allegation: “That the extraordinary use made by plaintiff of this brake was uncalled for and unexpected, and one that the brake was not calculated to sustain.” The trial court undoubtedly held tMs to be a •sufficient allegation to raise the question of contributory negligence on the part of the plaintiff in using the brake as a substitute for a ladder to enable him to climb onto the car, as the order overruling the motion contains the following paragraph:

“The motion for a nonsuit in this ease appears to- be based upon two principal grounds. The one is that plaintiff in doing what he did assumed the risk. The other ground is that plaintiff was guilty of contributory negligence.”

The trial court having treated the foregoing paragraph •as an allegation of contributory negligence on the part of plaintiff in stepping on the brake referred to, we will, for the purposes of this case, adopt the same view.

The rule has become elementary that it is a duty the master owes to his servant to use reasonable care and prudence for his safety by providing the machinery in use with such •appliances as will enable the servant with ordinary and reasonable care on Ms part to perform tbe duties required of bim without danger except as may be reasonably incident to the business or employment engaged in. That is, the 4 master is required to provide the same hind of appliances, or appliances equally as safe, as those in general use by men of ordinary, prudence who are engaged in the same kind of business. Bailey’s Mast. Liab., pp. 15, 16, and cases cited; Shearman & Redfield, Neg., sec. 194; Pool v. So. Pac. Co., 20 Utah 210, 58 Pac. 326. It is not only the master’s duty to provide his servants with reasonably safe appli anees, 5 but it is also his duty to use ordinary care in looking after, inspecting, and keeping them in repair. Shearman & Redf., Neg., sec. 195; Bailey’s Mast. Liab., p. 101. Testing the facts in this case by the foregoing rules, we do not think that such a ease of contributory negligence was made out as would justify a court in taking the case from the jury and granting a nonsuit.

When the defendant company transferred the car referred to from the passenger service to that of the freight, it was 6 its duty to provide it with the necessary appliances that are ordinari1~r used on and attached te cars used in the freight department, and to use oa~dinary care in inspecting such appliances and keeping them in repair, so as -to enable plaintiff and other employees of the company, whose duties required them to pass from one car to another while the train was in motion, to- do so without‘incurring unnecessary risks, or exposing themselves to unnecessary dangers. The defendant having failed to provide such appliances, it can not, 7 therefore, be held as a legal proposition that because plaintiff, while in the performance of his- duties, attempted to pass over thjs car, and in so doing stepped on the brake&emdash;the only means at his command to assist him&emdash;he was guilty of contributory negligence. In view of all' the circumstances leading up to -the injury of plaintiff, as shown by the record, the question as to whether he used that degree of care and caution that a man of ordinary prudence, understanding tbe hazard and dangers of tbe situation, would bave used under tbe same or similar circumstances, was a question for 8 tbe determination of tbe jury, in connection with tbe question of tbe alleged defect in tbe brake; and, if it was of such a character, that- tbe company knew, or by the exercise of reasonable care would have known, of its existence. It is urged that, independent of the question of tbe alleged contributory negligence of plaintiff in using'the brake to climb onto tbe car, be is precluded from recovering in this case because in making tbe run from Emory to Castle Rock on the day of tbe accident be not only violated tbe schedule, but also tbe printed rules, of tbe company. Tbe rude is well 9 settled that when tbe master has a large number of persons employed, and tbe safety of tbe employment mainly depends upon all of the employees performing their duties at stated times and in a given manner, it is tbe duty of tbe master to promulgate and furnish such employees with suitable rules and regulations for their guidance and safety. Pool v. So. Pac. Co., supra, and cases cited; Bailey’s Mast. Liab., p. 72. And tbe law bolds tbe servant to a rigid observance of such rules, and especially so where tbe employment consists of operating and running numerous railroad trains, and tbe safety of tbe traveling public is also involved. There are, however, exceptions to this rule. When the master has 10 habitually, either expressly or tacitly, sanctioned tbe violation of tbe rules; or for any reason suspended them, be can not interpose such violation to, defeat a recovery. Wright v. So. Pac. Co., 14 Utah 383, 46 Pac. 374; Konold v. R. G. W. Ry. Co., 21 Utah 381, 60 Pac. 1021, 81 Am. St. Rep. 693; Fluhrer v. Ry. Co. (Mich.), 80 N. W. 23; Nichols v. Chicago Ry. Co. (Mich.), 84 N. W. 470. Tbe undisputed evidence in this case shows that when trains were run in pursuance of time orders that paragraph No. 90 of tbe printed rules of the company — and tbe one mainly relied upon by defendant to defeat a recovery — was not observed, and that this condition of affairs bad always existed. And tbe record also shows that when a time order was issued to a conductor, and be bad sufficient time to reach the stations covered by the order, it was bis duty to do so regardless of tbe regular' schedule. The plaintiff on a former occasion made tbe run from Echo to Castle Rock in twenty-five minutes. On tbe day in question, under tbe time order issued to binq be bad twenty-six minutes in which to make tbe same run. The defendant, having by its own orders in effect authorized the plaintiff to ignore its rules, can not now be beard to complain of such violation.

Appellant assigns as error tbe giving of certain instructions to the jury by tbe court, and tbe court’s refusal to give certain instructions asked for by defendant. We can 11 not consider these alleged errors, as tbe record fails to show that any exceptions were taken to them. We find no reversible error in tbe record. Tbe judgment is affirmed. Costs to be taxed against tbe appellant.

BASKIN, C. J., concurs. BARTCH, J., dissents.