114 P. 532 | Utah | 1910
Lead Opinion
(after stating the facts as above).
During the examination in chief of witness Kelley, the engine foreman of the Rio Grande switching crew on the night in question, he was shown the frame of a hand lantern that was crushed and broken, and was asked if it was the same style of lantern as the one he claimed was on the rear of the Rio Grande switch engine at the time of the collision, and he answered that it was. Timely objections were made to this evidence by the appellant, on the ground that it was incompetent and immaterial for the reason that the lantern exhibited to the witness was not shown to be the same lantern that was on the rear of the Rio Grande engine at the time •of the accident. The record shows that the lantern which plaintiff claimed was on the rear of the engine in question
When the evidence was all in and both sides had rested, appellant asked for a peremptory instruction directing a verdict in its favor. The refusal of the court to so instruct the jury is assigned as error. The contention made in support of this assignment is that respondent as a matter of law was guilty of contributory negligence in substituting for and using upon the rear end of the engine in question a red light in lieu of the white lights required by the rales of both the Bio Grande and Short Line Companies. The undisputed evidence shows that for several years preceding the collision the switch engines used by the Bio Grande Company in its yards and in the transferring of cars from its own yards to the yards of the Short Line Company were usually .equipped .on the rear end with red lights, the same as the engine in question was equipped on the night of the accident. E. W. •Bywater, who, for several years next preceding the collision,
Appellant further contends that the court erred in permitting respondent to introduce evidence tending to show a waiver of the rules referred to on the part of the Bio Grande Company, for the reason that there was no issue presented' regarding the abrogation, modification, or waiver of the rules by the company. It appears that the transfer of cars from the yards of one company to the yards of the other was carried on pursuant to certain rules and regulations known as the “Standard Bules and Begulations of the American Bail-way Association.” These rules and regulations, so far as material here, were the same as the rules and regulations under consideration. In its answer, appellant, among other things, alleged, in substance, quoting from the statement of the issues contained in its printed brief, “that by these rules it was the duty of the Bio Grande Company to equip its-locomotives used in this transfer service with a headlight on the rear, as well as on the front, or, in lieu of a headlight on the rear, to equip such locomotive with two white lights on the rear thereof; . . . that it was also the duty of said Bio Grande Company to require its employees to keep a lookout in handling these locomotives, and protect themselves against collisions; that it had negligently failed to do-these things, but, on the contrary, in violation of the rules-governing the operation in question, sent said locomotive-into the railroad yards of the defendant not equipped with such lights, and permitted its. employees to stop such locomotives and remain upon a certain main line in such yards-without displaying any lights on the rear thereof.” Nowhere in its answer does the appellant allege that either respondent, the engine foreman, or any other member of the-
It is further contended that respondent should as a matter of law be deemed guilty of contributory negligence because he left his position in the cab of the engine and went out upon the front of it, and failed to keep a proper lookout for his own safety, and for his alleged failure and neglect to observe the following rule of the Rio Grande Company which was in force at the time of the collision, namely: “All signals must be used directly in accordance with the rules; trainmen, engineers, and firemen must keep a constant lookout for signals.” The evidence shows that at the time the engine was stopped at the point where it was standing when the collision occurred the glass on the headlight was a “little smoky,” and the light was burning a “little dim,” and respondent left the cab and got onto the front of the engine and wiped off the glass. Respondent testified that after he had cleaned the glass and was in the act of climbing down' from the headlight to the ground, or about the time he reached the ground in front of the engine, the collision occurred. John A. Douglass, one of the switchmen, was called as a witness, and his testimony tended to show that the collision occurred either as respondent was climbing down from the headlight or immediately after he reached the ground. The fireman, however, testified that he, the two switchmen, and respondent were sitting on the pilot beam in front of the engine, and had been in that position for ten or fifteen minutes, when the accident occurred. J. W. Love, a witness for appellant, testified that he was a member of the switching crew who were operating the Short Line train at the time
In regard to the use of a' red light on the rear of the engine on the night in question, instead of the kind of light required by the rules of the company, and the alleged -failure of respondent to keep a proper lookout for signals and for approaching cars during the time his engine was standing on the track before the collision occurred, the court instructed the jury in part as follows: “(12a) You are instructed that if you believe from the evidence that while the plaintiff’s engine was standing in the yard it had a red light burning on the tender end of the engine, and that this was the usual and customary manner of warning other trains approaching on the same track, or was all the warning that ordinary care required, and that it was sufficient to prevent other trains or cars being run against the plaintiff’s engine, if the persons operated them with ordinary care, then the plaintiff fully met the requirements of ordinary care on his part in this respect, and the fact that the plaintiff did not in addition Tceep a looTcout for approaching cars cannot avail the defendant nor in such circumstances mould the fact, if it he a fact, that plaintiff was sitting on the pilot of his engine, he any obstacle to his right to recover damages in this case.'” Appellant excepted to and assigns as error the giving of this, instruction. The court by giving that part of the instruction not italicized, in effect, told the jury that, if they found from the evidence that the installing and using of a red light on the rear of the engine was as efficient a method of protecting it as the kind of lights required by the rules, then, in that event, respondent did not commit a breach of any duty he owed the railroad company by substituting, a red light for the kind of lights required by the rules. Now, the rule is elementary that a master has a right to make
“Every breach of a rule represents a breach of a contractual obligation which has been either expressly assumed by the servant, or is implied by the fact of his having accepted or continued in the given employment with due notice of the existence of the rule. The servant’s agreement is that whatever may have been, apart from the rule, the standard of proper care, under the circumstances, the rule itself is to define that standard as between the servant and' his master, as long as the former remains at work. That this is really the prevailing view, even in the two states above mentioned (New York and Texas), is abundantly evident from numerous decisions in which recovery has been denied as a matter of law for the reason that the injury was caused by the violation of a rule.”
Respondent insists, however, that tbis rule is binding only as between master and servant, and that it does not obtain in cases where tbe servant is injured by tbe act of a stranger. As stated by Mr. Labatt, tbe principle upon wbicb a servant is debarred from recovering damages from bis master where be has been injured because of bis failure to observe a rule of bis master is that tbe servant is under a contractual duty to obey Ms master, and bis failure to do so is held to be negligence. And tbe authorities seem to bold that, where a
It is further contended on behalf of appellant, and we think the contention is well founded, that the court, by giving that part of instruction 12a which we have
Concurrence Opinion
(concurring).
I concur. As I view the case, no other conclusion than the one arrived at by my associate, Hr. Justice McCarty, is permissible. The - suggestion that the respondent in putting up the red lantern on the engine as a signal was in the same situation that a property owner is in who is required to guard a dangerous place by putting up barriers and signals is to my mind clearly untenable. Suppose that in the case of the owner of property some one had disregarded the signal and in coming in contact with the barrier erected by him had inflicted a personal injury upon him. Suppose, further, that in an action brought by such owner to recover damages for the injuries the defendant had pleaded contributory negligence on the part of the owner, and had supported that issue by some competent evidence.' Under such circumstances, could an instruction which in effect directed the jury, if they found that the plaintiff had put up a red light and that such red light was a sufficient signal to warn all passers that a barrier had been put up', that in such event they might find for the plaintiff be sustained ? Would not in such a case the plaintiff have to fail if the evidence justified' a finding that, although he had put up a signal, yet if by the exercise of ordinary care he could have avoided the injury to himself, but did not do so? Would not the defendant at least be entitled to an instruction which incorporated the foregoing principles of law? Yet, as I view this case, the trial court disregarded the foregoing principles, and in effect withdrew the question of contributory negligence entirely from the jury. This I think is so because, if instruction No. 12a did not have such effect, it had no effect whatever, for the reason that by it the jury were authorized to find for respondent upon the conditions therein stated, regardless of anything else that may have been said in any other instruction upon the subject of contributory negli
Dissenting Opinion
(dissenting).
I dissent. the plaintiff was an employee of the Rio Grande Western Railroad Company. the relation of master and servant in no sense existed between bim and the defendant, the Oregon Short Line Railroad Company. the first-named company delivered and received freight to and "from the railroad yards of the last-named company. the plaintiff was an engineer of a switching and transfer crew of the first-named company, and at the time in question was engaged in transferring ears from its tracks or yards to the defendant’s yard. After the cars bad' been switched to the defendant’s yard and the engine detached, it was left standing on one of the tracks in the yard while the foreman of the switching' crew went to the yardmaster’s office nearby to deliver bills, and get a receipt for the cars transferred. A lighted red lantern was displayed on the rear of the engine.. While awaiting the return of the foreman, the plaintiff wiped the headlight of bis engine, and, according to bis testimony and that of others, just as be finished, and was in the act of climbing down, the employees of the defendant, in operating a string of seven or eight cars at a speed of fifteen or eighteen miles an hour, without signal or warning of their approach, and without observing any lookout, ran against and collided with the plaintiff’s engine and injured bim. Others testified that the plaintiff at the time of the collision bad finished wiping the headlight and was sitting on the pilot beam, awaiting the return of the foreman, and that other members of the crew were standing at the side of the engine or were leaning against the front end of it. The engine bad been standing there from five to ten minutes before the collision. It was shown that the display of a red light on a car or engine or other object on the track indicated a danger and stop signal, and that such a light as was displayed on the rear of the engine could have been seen by the operatives
The alleged negligence on the part of the defendant was that its operatives in approaching plaintiff’s engine failed to give any warning or signal of their approach, failed to observe a reasonable lookout in advance of the cars operated by them, omitted to have a person stationed at the rear end of the cars operated by them, and operated the cars at .a negligent speed. It was shown that by printed rules of the Édo Grande Western Railway Company, the Oregon Short Line Railroad Company, and the American Railway Association, switch engines were required to be equipped with a headlight or two white lights on the rear when operated in yards for the purpose of distinguishing them as such. The engine furnished the plaintiff on the night in question was not equipped in such manner. The brackets on the engine were broken off, or were out of repair, so that such lights could not be held in position on the engine. The defendant, in its answer, alleged, not that the plaintiff or any member of his crew was negligent in’ failing to display white lights or a headlight at the rear of the engine, but alleged with particularity that the Rio Grande Western Railway Company was negligent in such particular and in permitting the plaintiff to operate the engine in defendant’s yards without being equipped as provided by the rules, and sought to impute the negligence of the Rio Grande Western Railway Company to the plaintiff. Nor was it alleged that the plaintiff or any member of his crew was guilty of negligence in failing to observe a reasonable lookout for the approach of locomotives or cars, but again the defendant alleged with particularity that the Rio Grande Western Railway Company was negligent in such regard, and that it failed and neglected to have its employees keep a diligent lookout.
Among other things, it was contended by the defendant that the operation of the switch engine in its yard without the display of a headlight or two. white lights on the rear
The plaintiff, of course, contended that the failure to equip the rear of the engine with a headlight or two white lights, or the fact of whether he was sitting on the beam
It, however, is argued that the latter portion of the instruction took from the jury the question of plaintiff’s situation about the engine and his conduct in respect of himself observing a lookout for signals and the approach of cars. I do not think the instruction open to such a contention, for the court, in effect, told the jury that such matters were immaterial only in the event of their finding that the display of a red light was the usual and customary manner of warning approaching trains, or that it was all the warning that ordinary care required, and that it was sufficient to prevent other trains or cars being run against the engine if those operating them themselves exercised ordinary care. In other words, if what the plaintiff did in such particular fully met the requirements of ordinary care, and was sufficient to prevent trains or cars operated under ordinary care being run against the engine, then, of course, plaintiff’s sitting on the pilot beam or his failure to observe a. lookout, whether negligent or not, could not be regarded the proximate cause of the collision. Such a principle upon such a situation is not unlike another where the court also charged the jury that if they found from the evidence “that the defendant’s servants in charge of defendant’s train of cars would have run upon the plaintiff’s engine, as they did, even if the plaintiff’s engine had been equipped with lights, and you believe that the plaintiff was guilty of negligence because the engine was not equipped with white lights, the plaintiff’s right to recover would not be defeated, because in such,case, even if he was guilty of negligence, he was not guilty of the contributory negligence, and mere negligence is not a bar.” In view of the evidence and the pleadings I do not think paragraph 12a erroneous. I do think that it is in conflict with the portions of paragraphs nine and ten of the charge set forth in the prevailing opinion, wherein
And, lastly, we must be mindful that tbe defendant did not allege that the plaintiff was guilty of negligence in failing to display lights in accordance with tbe rules, or in operating an engine in its yard in violation of them, or even in failing to observe a lookout, but that bis employer, tbe Eio Grande Western Railway Company, was negligent in such particulars. Tbe defendant, of course, should not be held responsible for an injury inflicted on tbe plaintiff through tbe negligence alone of bis master, or of any of its employees. Neither should tbe defendant be relieved from tbe responsibility of its own negligence, if its negligence concurred and combined with that of tbe Eio Grande Western Railway Company, or any of. its employees, and as such was the proximate cause of tbe collision and injury. This is upon the familiar rule that, where two causes combine to produce an injury, the defendant is not relieved of liability because be is responsible for only one of such causes.
I think tbe judgment of tbe court below ought to be affirmed'.
Rehearing
Counsel for respondent have filed a petition for a rebear-ing. Tbe jury by their verdict decided every question of fact, whether properly or improperly submitted to them, in favor of respondent, and every assignment of error presented and relied upon by appellant in this court for a reversal of the judgment, except the assignment of error directed to and involving the giving of the latter portion of instruction 12a, was also decided in respondent’s favor. His counsel, nevertheless, have reargued and gone over the entire case in the petition for a rehearing. They appear to be as much, if not more, dissatisfied with the conclusions announced in the prevailing opinion on the questions which were decided in their client’s favor than they are with the conclusions therein reached on the point upon which the judgment was reversed. The petition contains seventy-nine pages of typewritten matter, and sixty-five pages are devoted to reviewing the questions of fact and propositions of law that were decided in respondent’s favor.
The first question argued by counsel in their petition involves the giving of instruction fourteen. The trial court, by giving the instruction, withdrew from the consideration of the jury the question of whether there had been (quoting from the instruction) “any change, modification, or abrogation of the rule requiring switch engines to be equipped with a. headlight on the rear of such engines, or, in the absence of such headlight, two white lights.” In the opinion we say: “The withdrawal of that question from the jury, whether right or wrong — a question we are not called upon to determine — narrowed this phase of the case to the simple proposition of whether or not the violation of the rule directly contributed to and was a proximate cause of the collision.” Counsel contend that this instruction was erroneous, and that we should have expressly so held in the opinion. There are two answers to this contention. The first is that notwithstanding the court withdrew from the consideration of the
Counsel also contend that instruction nine was erroneous, and that we should have so held in the opinion. Neither party assigned the giving of this instruction as error; hence the question was not, and is not, before us for review. And, moreover, the questions of fact submitted to the jury by this instruction were decided in favor of respondent. But, since the case is to be retried, we remark that instruction nine is general in its terms, and does not refer to any particular or specific rule of the Rio Grande Company, and that there were other rules introduced in evidence besides the rule requiring switch engines to be equipped with white lights. The following rule was in full force and effect at the time of the
It is also asserted in the petition that the opinion contains other misstatements of fact, but we have neither the time nor the inclination to devote further space to this phase of thé petition, except to say that we have again carefully examined the record, and find that these assertions of misstatements of fact in the opinion are as unfounded as the alleged misstatement of fact which we have just reviewed. We remark, however, that the captious and acrimonious tone of the petition is not to be commended.
Counsel in characterizing the conclusions announced in the opinion, whether in favor of or against respondent’s contentions, have made use of language which borders on the offensive. We are disposed, however, in this case to attribute the intemperate language used to the zeal and earnestness of counsel in the presentation of their client’s cause rather than to any desire or inclination on their part to show disrespect for this court.
We now come to the point, and the only point, in the case upon which the judgment was reversed, namely, the last six lines — the part we have italicized — of instruction 12a. The reply brief of respondent contains the following statement: “Counsel says that the jury might have found (but for the instruction) that he (Gilboume) ought to have been keeping a lookout to the north. But they did not so find, and they could not have done so under the instruction.” This is referred to in the opinion as a concession on the part of respondent that the instruction, in effect, withdrew from the
It is urged that the facts and circumstances, as disclosed by the record, show that, if respondent, had been keeping a lookout for approaching cars, the collision, nevertheless, in all probability, would have occurred. But it does not nececssarily follow that respondent would have suffered the injury complained' of, nor can we say as a matter of law that he would have suffered any injury if he had remained in
“Although the defendant may have been guilty of a want of ordinary care tending to produce the injury complained of, still the plaintiff will not be entitled to recover damages if he could by the exercise of ordinary care have avoided the consequences of the defendant’s negligence, or, what is the same thing, that he cannot recover when his own negligence proximately .contributed to or produced the injury of which he complains. This rule not only commends itself to our instinctive sense of justice, since what can be a more reasonable requirement than that a man must take ordinary care of himself, or suffer the consequences, but it is also in harmony with the spirit of the law in other respects, in that it puts every man upon his guard, and suffers him not to take advantage of his own lack of prudence or care, by first running into danger, and then calling upon some one else to recompense him in damages for what he suffers. It is a principle of law so consonant with justice and right reason that it can never be overthrown.”
In 29 Cyc. 519, it is said: “Thus one wbo voluntarily assumes a position of danger, the hazard of which he understands and appreciates, cannot recover for resulting injury, unless there is some reason of necessity or propriety to justify him in so doing.” In this case there is evidence tending to show that, after respondent had cleaned the glass of the headlight on the engine on the occasion in question, he took up and occupied a position in front of the engine, and that he and the other members of the switching crew, except Kelley, who had gone to the office, had been leaning
In the prevailing opinion we remark that the respondent was holding his engine on the main track along which he knew a train might pass at any moment. In the petition this is characterized as a “misstatement of fact,” and we are taken to task for making it. Counsel, however, in correcting this “misstatement,” say: “He was standing on the main line, but the main line is a track on which trains run according to schedule,” and that “nothing in the record shows that any train was due about the time of the accident.” Therefore respondent, if we correctly sense and grasp the logic of counsel’s argument, having equipped his engine with the necessary danger signals, could, with impunity, and without assuming the risks, disregard signals that were given for his safety and remain upon the pilot beam of his engine, or, for that matter, as herein suggested, go to sleep on the track in front of the engine, oblivious to all that was going on around him in this busy railroad yard, until some train that was being run according to schedule should pass along the track. We cannot assent to any rule or doctrine that would lead to such an absurdity. Counsel further say, by way of argument, that “this is not Tike the case of a man crossing a railroad track where trains may be expected at any moment. One crossing a railroad track without looking may fairly be said to be in -.a situation where in. the light of attending circumstances he ought to forsee that he is liable to be run over and injured.” Nor may a man who is
The petition for a rehearing is denied. We have made a few formal changes in the prevailing opinion, and the case will be ruled and decided by the opinion as modified and rewritten, and the opinion as changed and modified will be published as the opinion of the court. The opinion as first written will remain on file, but will not appear in the published reports.
