142 P. 705 | Utah | 1914
This action was brought by the father as administrator to recover damages for the death of his son Leonard Davis, which, it is alleged, was caused through the negligence of appellant.
The facts shown by respondent’s evidence, in substance, are as follows: On December 2, 1912, the deceased was employed by the Utah Copper Company at Bingham Canyon, Utah. That company then owned and was operating a machine shop which was located in what is called Bingham Canyon, and the appellant owned and operated a railroad consisting of several tracks near and along said machine shop. The Utah Copper Company also owned and operated several railroad tracks, some of which were used in taking engines to and from the shop. The foregoing railroad tracks, it appears, were laid along a rather steep hillside, so that on the one side of the tracks was a steep ascent or bluff,' while on the other was a somewhat abrupt and precipitous decline into the canyon below. The ground, however, where the tracks were laid was made level. When snow fell which, in the winter season, was somewhat frequent, it was shoveled from the tracks and piled up along the sides thereof. It was the duty of the deceased on the night in question to keep alive several, what were called, small dinkey engines by supplying them with coal so as to keep the fires going to: prevent freezing. The engines, on the night in question, were standing upon the Utah Copper Company tracks, and about one hundred feet distant from the machine shop, and the deceased was required to walk that distance in the performance of his duties as aforesaid in going from the machine shop to the engines. When he had fired up the engines it was his duty to report to his superior, who was in the machine shop, and from him receive further orders. The night in question was very dark, and the atmosphere in the canyon surrounding
“"When they come down here and couple onto a string of cars and get a signal, and they whistle in answer to the signal and go on up the hill; then they come down to the yard; they whistle again for the yard. A man that wasn’t a railroad man or well acquainted with the position of the different engines in the yard, might get confused with regard to those whistles; a whistle here, a whistle there, a whistle over on the hill where the engineers is working, it would be hard for him to' tell which engine was whistling unless he was a .railroad man — then possibly he could figure it out. ’ ’
There was also testimony to the effect that on the night in question the snow had been shoveled off the tracks and “piled up” along the sides thereof. One witness said:
‘ ‘ There was irons piled between the tracks so it would prevent them (the pedestrians) from walking there (between the tracks) without having to walk on the tracks because there was big irons of all kinds that occupied practically all that ground.”
It also appeared that there were no lights outside of the machine shop on the night in question; that the men Avere working on some boilers in the shop, and in hammering the iron or steel plates made considerable noise; that there' were also hissing noises caused by escaping steam from the engines
Upon the part of appellant there was much evidence, some of which was in direct conflict with the statements, here outlined. The jury were, however, the sole judges of the facts and of the credibility of the witnesses, and hence it could subserve no purpose whatever for us to set forth any of the evidence produced on behalf of the appellant.
When both sides, had rested appellant moved for a directed verdict “on the ground that the deceased was himself guilty of negligence as matter of law,” in the particulars specified in the motion. In referring to the question raised by the motion, counsel, in their printed brief and argument, say:
“Among other things we claimed that the deceased was. himself guilty of negligence as a matter of law in failing to look and listen for approaching cars. In this, connection we desire to call attention to the following cases, where the courts held that the deceased or injured party was- guilty of negligence as a.matter of law in failing to ascertain the approach of trains. ’ ’
“All that can be said is that, unless the question of negligence is free from doubt, the court cannot pass upon it as a question of law; that is, if after considering all of the evidence and the inferences that may be deduced therefrom the court is in doubt whether reasonable men, in viewing and considering all the evidence, might arrive at different conclusions, then this very doubt determines the question to be one of fact for the jury, and not one of law for the court. The court can pass upon the question of negligence only in clear cases.”
Error is also assigned upon the charge to- the jury. It is insisted that the court erred in charging the jury as follows:
This identical instruction was complained of in the case of Evans v. O. S. L. R. Co., 37 Utah 431; 108 Pac. 638, Ann. Cas. 1912C, 259. We there held that the instruction was not prejudicial to the rights of the appellant in that ease, and we can see no difference between that case and this case. The instruction, however, has frequently been upheld by the courts. See the eases cited in the Evans case, 37 Utah, page
We desire to say now what perhaps we should have said in deciding the Evans case, namely, that the mere fact that an instruction is held not to constitute error in a particular case is no reason why it should be accepted as a model to be followed in all cases of similar character. While the instruction criticized by counsel in this case states a correct abstract principle of law in stating the presumption, yet it is not to be approved as a model, since the last two sentences are clearly argumentative. Moreover, it is not presumed that a person did a particular thing in a particular way. The court may well inform the jury that, in the absence of evidence to the contrary, a person who was exposed to danger is presumed to have exercised due care for his safety. There is no presumption, however, that he, under particular circumstances, did a particular thing. Courts, therefore, should confine themselves in charging the jury to a statement of the presumption without adding argument. We cannot see, however, how the argument in this case could have misled the jury, and especially not in view of what the court said in the instruction immediately following the one complained of, which in fact was still a part of the one criticized, and wherein the effect of the presumption is limited and explained. But it is contended that the instruction was improper in this case in any event because there was direct evidence that the deceased did not look or listen for the approaching train at the time or just before he entered upon the track. All the evidence there is upon that subject is that of the witness Whitehead. That witness said he saw the deceased after leaving the dinkey engines approach the track, and when he had reached it saw. him stop a moment then step' onto the track. The witness then turned his head in another direction for a moment, and on turning again to look where he last saw the deceased he saw his lantern fly in the air and saw a train passing. The witness said all he saw of the deceased were
The judgment is affirmed with costs to respondent.
Evans v. O. S. L. R. Co., 37 Utah 431; 108 Pac. 638; Ann. Cas. 1912 C. 259.