21 P. 560 | Idaho | 1889
This is an appeal from the district court of the third judicial district, Bear Lake county, tried by a jury at the July term, 1888, Honorable Case Broderick, district judge, presiding. The action is brought by the plaintiff as administrator of one Fred. S. Drake, deceased, who was killed in an accident on the Oregon Short Line Railway, one of the lines of the defendant, at a point near Ham’s Fork, in Wyoming territory, January, 28, 1887. The complaint alleges that the deceased was employed by the defendant at the time as a fireman on one of its locomotive engines; that at the place of the accident "the track of the said road was out of repair, and unfitted for the passage of trains, by reason of ice and snow, which the defendant had negligently permitted to remain on the track”; that the defendant, with knowledge, etc., willfully and carelessly ran its train and engine over said track, whereby the deceased, without fault on his part, was killed; that the deceased was ignorant of the condition of said track, or that it was out of repair, or unfit for use. The plaintiff demands' judgment as administrator, and pleads the statute of Wyoming territory, where the accident occurred, as allowing recovery by an administrator. The answer of the defendant puts in issue each allegation of the complaint. On the trial, when the evidence on the part of the plaintiff was closed, and the plaintiff had rested his ease, the defendant moved for a judgment of nonsuit, under section 4354 of the Statutes of Idaho, subdivision 5, on the ground that the plaintiff had failed to prove a sufficient case for the jury. The motion was denied, and the defendant excepted.
Certain requests were made by the defendant to the court to charge the jury (which requests will hereafter be referred to
The first point of the appellant is that the court erred in refusing judgment of nonsuit. That motion was based upon the want of evidence, and the ground is taken that the evidence did not show such a state of facts that the jury could find the defendant liable. It is stipulated that the ease before us contains all the evidence. A review of this point involves an examination of the facts of the case. There is little or no conflict between the witnesses on any material point. Stated as strongly for the plaintiff as the evidence will warrant, they are about as follows: The deceased is alleged in the complaint to have been at the time of the accident in the employ of the defendant as fireman on one of its locomotive engines; and the evidence shows that this employment was on and over this division of the road, on its regular trains, and that he had been so employed for some years; that he ran between Montpelier, in Idaho, and Granger or Green River, in Wyoming territory, with his headquarters at Montpelier, and on each trip passed over the place of the accident; that the train on which he was regularly employed and running was stopped, either the day of the accident or the preceding day, while going east, in consequence of the snow on the track, and difficulty of running, in consequence of the drifted condition of the roads, at a station called Fossil, about ten miles west of the place of the accident; that other trains, from both directions, had stopped there, and the running of regular trains had been practically suspended, since early in the morning of the accident; that at 12:15 P. M. of that day a special train was made up of passenger cars, to be drawn by two ■ engines, the train' so made up being what is known as a “double-header,” to be sent from Fossil east over
The judge charged, at the plaintiffs request: "1. That if the jury find from the evidence that the said railway track was obstructed with ice and snow; that this caused the wreck of the train on which Fred. S. Drake was riding; that in such wreck he was killed without fault on his part; that the defendant’s r'oadmaster or superintendent, or both of them, had notice of said obstructions in time to remove the same, or in time to have prevented the said train from running into or upon such obstructions, by the use of ordinary diligence, under all of the circumstances of the case — then your verdict should be for the plaintiff; 2. In this ease it is admitted that Fred. S. Drake lost his life at the time and place alleged in the complaint; and the first question for your consideration is whether there was negligence on the part of the defendant company. The defendant was bound to use ordinary care in keeping its track in a safe ■condition. If it failed after notice to do it, in this instance, then it is liable; but if, under all the attendant circumstances, you are not satisfied from the evidence — that is, by a preponderance thereof — that the company was negligent, then it is not hable in this action, and you are the exclusive judges of the evidence and facts.” These charges are erroneous, both in what they contain, and in what they do not contain. The ease was not the case of a passenger riding upon a train, and, the'
The defendant further requested the court to charge "that if,, in this case, the jury find from the evidence that, at and near the point of the wreck resulting in the death of Fred. S. Drake,, and at the date of its occurrence, there had been recent storms- and snowfalls in various places on the track of said railway,, thereby increasing the risks and dangers to trainmen and others-in going over said portion of said road, and the deceased had knowledge or the means of being informed of said conditions,, by the exercise of ordinary diligence, and notwithstanding he-continued in said employment until he received the said injury-resulting in his death, in consequence of the said dangers, then, the plaintiff cannot recover in this action.” This request was-refused, but, in our opinion, should have been given especially,, as qualifying what was actually given, and its refusal as error. The rule as to risks assumed by an employee, and the liabilities of the employer, as to injury to the servant while on duty in such employment, is, in effect, stated in Pierce on Kailroads,. 379, that a servant who, before the injury, had knowledge of the special risks and dangers of the service, or who, having reasonable opportunities to inform himself, ought to have known the facts constituting such risks and dangers, by remaining in the company’s service is presumed to have assumed the risk of. such voluntary exposure of himself; and he cannot recover for an injury resulting therefrom; and his knowledge has the same effect, whether the employer was informed or was in fact ignorant of such danger; and the rule applies with special force when the danger is obvious to the senses, as in this case, and where the servant was voluntarily assuming the task of removing the very obstructions complained of. (2 Thompson on Negligence,.