Helfrich v. Ogden City Railway Co.

7 Utah 186 | Utah | 1891

BlackbuRít, J. :

This suit is brought to recover damages for the death of O’Hare, claimed to have been caused by the. negligence of the defendant. The deceased was in the employ of the defendant company as engineer managing the locomotives that moved its trains. The negligence claimed is the maintenance by the defendant company of its track too near a line of telegraph poles. It appears from the undisputed evidence that the deceased went the whole length of the track of the road before he was employed, and knew how close to the track the poles were; that he had been running the engine about eight days before he was killed; that the day he was killed he was told he had better keep his head inside the cab, or he would get hurt] that he put his head and shoulders outside the cab while the engine was in motion, and was looking back, and his head was crushed against one of the poles, and he was killed. It further appears that the defendant company maintained its track about twelve to eighteen inches from the line of telegraph poles, and operated it in that condition. We think it was negligence in the company in maintaining and operating its road so near the line of telegraph poles; but this case turns upon the question as to whether the carelessness of the deceased caused his death. If he was negligent, and did not use due care, reasonable in the situation, and his want of such care contributed to his injury, the plaintiff cannot recover. This doctrine is so well known and understood that no authority need be cited in its support; but we cite Quibell v. Railway Co., post, 25 Pac. Rep. 734 (decided at this term of this court). In this case the evidence without contradiction shows that the decedent at the time he was killed had his head and shoulders to half way between his shoulders and elbows outside of the cab window, and was looking back, and in this position his head crashed against one of the poles, and he was killed. His act not only seems careless, but more .like the rash act of a man reckless of his life. We think the verdict of the jury is so manifestly against the undisputed evidence that the court below should have granted a new trial. The rule is that, where the verdict of the jury is manifestly against the evidence, and- the trial judge refuses to set aside the verdict, it is the duty of the appellate court to reversó the case, and grant a new trial. Keaggy v. Hite, 12 Ill. 100; Hilliard, Hew Trials & App. 336, 339, and authorities therein cited. In this •case the carelessness of the decedent clearly was the proximate cause of his death, and the jury ought to have found for the defendant. The case is reversed, and a venire de novo awarded.

Zane, O. J., and AndeRSON, J., and Minee, J., concurred.