146 P. 292 | Utah | 1915
This action is brought to recover damages for the death of plaintiff’s intestate, alleged to> have been caused by the negligence of the defendant, an interstate common carrier of passengers and freight for hire from Dragon, Utah, to Mack, Colo. The deceased was in its employ, and, admittedly, at the time of his death, was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act. The case was tried to the court and a jury. The plaintiff had judgment in the sum of $3,467, from which the defendant appeals.
The questions presented for review relate to the admission of certain evidence over the defendant’s objections, to portions of the charge, and to the court’s refusal to charge as requested by the defendant. The pleadings are voluminous. Only so much of them, and of the evidence, will here be noticed as thought necessary to illustrate the assignments.
In the complaint it is alleged that the defendant, a few miles west of Mack, maintained a railroad bridge across a ravine about one hundred twenty feet wide and about ten feet
“In case of extraordinary rainstorms or high water, train
The defendant, in its answer, admitted the ravine was a common channel for surface waters from the surrounding country; that it maintained a wooden bridge across it; that the east bank of the ravine was not protected by cribbing, but alleged that that was unnecessary; that a heavy rainstorm had fallen, for some hours before the accident; that the defendant’s track in one or two places had been undermined; that the bridge at the ravine had become partially undermined at the east end, but such undermining was invisible because of the presence of the water, and that, as a result thereof, the engine plunged into the ravine, causing the death of the deceased, who was riding on the engine. It denied the alleged negligence, and pleaded contributory negligence and assumption of risk, in that the deceased, without authority, and without the defendant’s knowledge, rode on the engine.
The plaintiff, in brief, adduced evidence to show that the defendant, on the evening of the day of the accident, was operating towards Mack a mixed passenger and freight train consisting of an engine and tender, a box car loaded with ice, a passenger car containing three or four passengers, a freight caboose, and a flat ear, in the order named. On account of a heavy and unusual thunder and rain storm and cloud-burst that afternoon, a bridge or culvert about eight miles west of Mack was washed out, preventing the train passing over it. The train arrived at that place between six and seven o’clock in the evening. The train crew communicated with Mack to the east and Atchee to' the west for help. The deceased, at Mack, was employed and engaged in transferring gilsonite for the defendant. The foreman, at Mack, with a gang of men, including the deceased, took a push car loaded with ties and
The engineer «testified for the defendant that he, before the engine started on its journey after the repairs had been made, saw the deceased and others at the engine, as he supposed, .to get a drink of water, and that he then frobade the deceased to ride on the engine, and did not know he was on it. The plaintiff adduced evidence to show.that the fireman and the deceased were well acquainted and friendly, and that when the last stop was made the deceased was seen on the engine “chatting” with the fireman in the presence of the engineer, and that the fireman, in the engineer’s presence and hearing, invited others to ride on the engine “to warm'and dry themselves. ’ ’
“I certify as archbishop of Kranedion that it appears on the book of the Permission of Marriages. of the County of Kranedion that Christos Michael Kipros, aged 32, came in lawful marriage to Vassilild Panagiotou Toumpe, aged 24, on September 7, 1908. The marriage was performed by the reverend of the Holy Church Prodromou, Michael Louka. ’ ’
This was signed by Panteles N. Economos, archbishop of Kranedion. His signature is certified to by the mayor of
“What department or public office in Greece has charge of-the subject of matrimony and control of marriages and permission of marriages, if you know?”
To that the defendant objected upon the ground that it was not shown that the witness “has any competency to speak on that subject.” The court overruled the objection. The witness answered:
“The high priest and archbishop. He has charge of the permissions of marriages and of the records, the preacher — the reverend — performs marriages in Greece. I know whether permissions for marriages are obtained' in Greece from any official.”
A motion was also made to strike the answer. That was overruled. The witness further testified that he knew the deceased when he lived in Greece, and that:
“I know the time he was married. I was there. After that he lived with Vassiliki Christou Kipros' as his wife. They went out in public and lived together as man and wife. They were going out. They were going to the church and public parks.”
He further testified that he had had an invitation to the marriage, but ‘ ‘ I was not present at the marriage ceremony. ’ ’ The plaintiff thereupon again offered the exhibit in evidence. The offer was objected to upon the same grounds. It then
In addition to that, the plaintiff also put in evidence the deposition of a witness taken on behalf of .the defendant. It was the deposition of the conductor who had brought the gang of men from Atehee to the place of the first washout, and who from there accompanied the train to the place of the accident. He, on direct examination, deposed concerning the bridge, its construction and condition, the ravine, the water coursing in it, the washouts and repairs made, the movements of the train, and the circumstances of the accident. On cross-examination he deposed that there was no cribbing at the east end of the bridge; that there was a heavy rainfall, and that water was flowing through all the ravines and gullies between Atehee and Mack, and that the storm was a little out of the ordinary; the time he had been in the defendant’s train service; and that he had had “railroad experience elsewhere with the Louisville & Nashville about five years as brakeman and conductor, and with the Southern about three and one-half years as flagman.” Then, on further cross examination he was asked:
“It is the custom and the ordinary duty, in ease of an extraordinary rainstorm or high water, that the train should be brought to a stop and a man sent out to examine" bridges, culverts, and other points liable to damage before passing over it, isn’t it?”
To that an objection Avas made by the defendant upon the grounds of improper cross-examination, no competency of the Avitness shoAvn to speak as to the customs inquired about, that the question called for the opinion and conclusions of the Avitness, and that it was not limited to the time of the accident. The objection was overruled. The witness answered :
*400 “Well, we didn't have any, as I said, in the book of rules. Q. I say, isn’t that the ordinary rule and duty on all railroads, whether it is in the book of rules or not?”
To that the same objection was made, and further, that “the rules themselves are the best evidence.” The objection was overruled. The witness answered:
“If I was in charge of the running of the train I would use my own judgment, if I thought it necessary; I would do that if I thought it necessary; and I would do that if I thought reasonable care demanded it. Q. And that would be required ordinarily of railroad operatives, wouldn’t it?”
This was objected to upon the same grounds. The objection was overruled. The witness answered:
“Well, it is all right whether it is provided for by rule or not. I would, if I thought it was necessary that I do it, go and make a personal examination.”
The plaintiff also called the defendant’s superintendent. He testified that he had been in the railroad business for twenty-five years as brakeman, conductor, and superintendent, and had worked for the Denver & Eio Grande Railroad Company from. 1889 until 1903, and tha,t he had also been in the' employ of the Rio Grande Western, and of the Uintah Railway Company. He testified that the defendant had no printed rules governing the movement of trains at times of high water, and had not adopted the rules and regulations of the Denver & Rio Grande Railroad Company nor of any other railroad company — “but we gave verbal instructions governing the movement of the trains. We had special instructions regarding the movement of trains over our tracks of extraordinary high water or rainstorm; we had bulletins up. We issued special instructions from time to time. I know on this occasion the dispatcher told the conductor to be very careful and to look out for trouble after this first accident was reported — the washed out culvert. We also sent our foreman out .from Mack to examine.the track and help. That is the only instruction or rule I know of.”
Then he was asked by plaintiff’s counsel:
“Q. Then, you didn’t have a rule, printed or verbal, which in substance or effect was' that in cases of extraordi*401 nary rainstorm or bigb water a train must be brought to a stop and a man sent out to examine bridges, trestles, culverts, and other points liable to damage before passing over it, did you?”
To that defendant’s counsel said:
“I object to that as incompetent under the pleadings. There is no charge of negligence in the complaint- in failing to adopt any rules. The charge is that we did adopt the Denver & Rio Grande rules, and that this was a violation of them. ’ ’
The objection was overruled. The witness answered: “No, sir. ’ ’ The witness was then further asked concerning his experience and work with other roads heretofore mentioned, and then was asked:
“Q. I-will ask you if it is not the custom in your experience as a conductor on other railroads where you have worked, under the same circumstances which you have mentioned as obtaining between the Uintah Railway Company and the other road that you worked on, in case of extraordinary rainstorm or high water, that a train must be brought to a stop and a man sent out to examine bridges, trestles, culverts, and other points liable to damage before passing over the same?”
To that an objection was made upon the grounds that the witness was not shown to have had sufficient experience to qualify him to answer; that his experience was too remote; and that the inquiry was not confined to the time of the accident. The objection was overruled. The witness answered :
“Why, it Avas customary to be very careful and examine; that was the custom; yes. ’ ’
The plaintiff also called the general foreman of the construction of the Denver & Rio Grande Railroad Company, with headquarters at Tucker, Utah. He testified he had been in the service of the Denver & Rio Grande Western Railroad Company, the Rock Island, and the Union Pacific, in various capacities, principally as foreman of bridge gangs and scale inspector. He Avas asked:
“During your experience in the railroad service for those roads, I will ask you if it was the custom that supervisors*402 of bridges 'and buildings, or any persons having supervisión over road carpenters, masons, pumpmen, or other like employes, must know that labor and materials are used properly and economically, that the bridges and structures are being maintained in a safe condition, make periodical inspections, and know that foremen understand the rules and signals?”
To that an objection was made that it was not shown that the witness had competency to speak of such a custom on the several roads on which he had worked, and that the question was incompetent under the pleadings, and that it was not alleged in the complaint that there was any custom or usage on the part of other railroads such as was inquired about. The objection was overruled. The witness answered: "I understand that there was such a rule. Q. "Was that the custom?” To that the same objection was made, which was overruled, and the witness answered: “I so understand it.” The witness was then cross examined with respect to inspections, and by whom made, from which it was elicited that it was the duty of inspectors to look bridges over and determine whether, in their judgment, they -were safe, and that inspections were not made at stated intervals, but when ordered by the supervisor, who designated the bridge to be inspected. Then on redirect he was asked:
“But it was the duty of the supervisor to see that the bridges and structures were being maintained in a safe condition ? ’ ’
To that an objection Avas1 made as calling for the conclusion of the witness. It was overruled. The witness answered:
“I would naturally presume so, but I am not exactly familiar with the routine of the- supervisor’s office. As general foreman of construction I got my orders from the construction engineer on the works. It is my understanding that it was the custom that he should see that the bridge and structures were maintained in a safe condition, and to make periodical inspection of the bridges and buildings.”
Complaint is made of all these rulings. The plaintiff seemed to have labored under the impression that to’ show a duty was imposed on the defendant and the train operatives in charge of the train to examine the bridge, under all the
Depending upon the particular facts, due care in one case might well require a train to be stopped and bridges examined before attempting to pass over them; in another not. Whether due care required that to be done in the one, and not in the other, is not susceptible of elucidation by proof of a custom or general rule of others. Such proof has neither relevancy nor materiality to aid the jury in forming their judgment of what the defendant, or its émployés in charge of the train, in the exercise of ordinary care, were or were not required to do in the given case.
*407 “There are extreme eases of emergency when you can’t very well avoid even Greeks riding on the engine, and in such eases they are permitted to ride.”
On redirect examination he testified that the extreme eases of emergency spoken of were when they had no cars for them to ride on. Then on recross he was asked:
“Q. But I say there was an emergency on the railroad that night, an unusual occasion, wasn’t there 1”
To that an objection was made on the ground that it was not proper cross-examination. The objection was overruled. The witness answered: “Yes, sir.” Complaint is made of this. In view of the previous testimony of the witness, we think it was not improper.
The defendant by its requests to charge requested this:
The court, refusing that, charged:
“If you find that Mr. Kipros was told by the engineer, or any other employé with authority in such matters, not to ride on the engine, but that, in disregard of such command, he rode on the engine, then I instruct you that your verdict should be for the defendant. ’ ’
Complaint is made of the refusal to charge as requested.
There was no evidence to support a finding of facts stated in the request, ‘ ‘ If you find that there was a custom and rule-in force oh the defendant’s railroad,” etc. "What was testified to in such respect was :
By the engineer: “I received orders from the superintendent not to allow any one to ride on the engine except members of the train crew.”
By the superintendent: “I gave verbal instructions to members of the train crew not to allow any one to ride on
The charge which the court gave was more applicable to the evidence than was the request, and hence no- error was committed in refusing the request.
On the question of damages the defendant requested:
10 “(1) If you find that the plaintiff is entitled to recover damages, then I instruct you that you can award damages only for the loss sustained by the widow (if you find
that the deceased did, in fact, leave a widow) in being deprived, by the death of the deceased, of a reasonable expectancy of the pecuniary benefits she would have received from him but for his death. The damages are limited strictly to the financial loss thus sustained. You cannot award her damages for any grief or mental suffering because of his death, or for being deprived of his care, society, companionship, or affection.”
Also, that “you will award no damages for any pain or suffering that the deceased may have suffered between the time of being precipitated into the wash and the time of his death,” and that, if the jury found that the plaintiff was entitled to recover damages, then, in-determining the amount, they had a right to take into consideration “the possibility of her remarrying and receiving from another husband the pecuniary benefits of which she may have been deprived by Mr. Kipros’ death,” and that in determining “the possibility of her remarriage you have the right to take into consideration her age and the fact that she had no- children by Mr. Kipros. ’ ’ The court gave all that, but, instead of giving the first request in the language requested, gave this:
“The court instructs the jury that, if you find the issues in favor of the plaintiff, it will then be your duty to assess such damages as should be awarded to the plaintiff for the benefit of the widow of Christ M. Kipros, deceased, if you find he did leave a widow. In assessing such damage you are not to take into consideration any grief or mental suffering on the part of the widow because of his death, or her loss of his society, companionship, or affection, but you have a right to take into consideration the age of the deceased at the time*409 of bis death, bis occupation, tbe wages be was receiving, tbe support wbieb be was furnishing to tbe widow, tbe condition of his health, bis probable earnings during his probable duration of life, and from such considerations, in connection with tbe evidence before you throwing light upon tbe probable pecuniary loss which tbe widow has sustained in tbe death of her husband, it will be your duty to assess such damages as shall be fair and just, not exceeding tbe sum of $25,000. If you find any damages for the plaintiff, such damages must be strictly limited to tbe financial loss sustained by tbe widow of tbe deceased. Ton cannot award any damages for any pain or suffering that tbe deceased may have suffered between tbe time of being precipitated into tbe wash and tbe time of bis death.”
All other requests on tbe subject were given in the language requested. Complaint is made of the charge just quoted. The objection to it is that the court, by the language, “It will be your duty to assess such damages as shall be fair and just,” gave tbe jury tbe license, without restriction, to find auy amount within that alleged which they thought was just and fair. We do not think the charge open to that, for tbe jury were expressly charged that the “damages must be strictly limited to the financial loss sustained by the widow. ” A mere glance at the charge on the question of damages shows the court-, at the defendant’s request, fully, if not more than, protected the rights of the defendant in such particular.
“The court instructs the jury that, if you believe from the evidence that the bridge crossing the ravine where the accident occurred was weak and insufficient to withstand the force of the waters which would flow down through said ravine under the conditions and circumstances prevailing on the night in question, so that the force of such waters would wash away said bridge or any part thereof, as alleged in the complaint, or if you believe from the evidence that the east bank of said ravine was not protected by. cribbing or other bulwark for the purpose of preventing the water flowing in said ravine under such circumstances from undermining and washing away the east bank and the supports to' said bridge at the point where it reached the east bank, as alleged in the complaint, and if you believe from the evidence that the defendant knew, or, by the exercise of reasonable care and diligence, ought to have known, that said bridge was so insufficient, and that it was dangerous for the train upon which the dceased was riding to be moved over on the night in question, and that, notwithstanding such fact, the defendant caused or permitted the train upon which the deceased was riding to be moved upon said bridge in an attempt to cross said ravine while such dangerous condition existed, and if you believe from the evidence that the train was wrecked and precipitated into said ravine, and that the deceased was thereby killed, and that his death resulted by reason and on account of such defect or insufficiency of said bridge and its supports, then the defendant would be guilty of negligence, and would be liable to the plaintiff in this action, unless you find from the preponderance of the evidence that the deceased assumed the risk.”
Complaint is made of a portion of this charge. What is urged against it is that the court assumed that the bridge was insufficient, and dangerous, and that the defendant was negligent in not protecting the east bank with cribbing. The language pointed to from which it is claimed the court assumed that is:
*411 “If you believe from the evidence that the defendant knew, or, by the exercise of reasonable care and diligence, ought to have known, that the said bridge was so insufficient, and that it was dangerous for the train upon which the deceased was riding to be moved over on the night in question,” etc.
"We think it does not fairly convey'that meaning. Further, that the bridge was dangerous ‘ ‘ on the night in question, ’ ’ at the time it was attempted to be crossed, admits of no controversy, for the evidence, without dispute, shows that the east bank was washed away, the bridge left so unsupported and rendered so insecure as to be almost impossible to operate an ordinary engine and cars over it. We do not see anything in the charge to justify the conclusion that the court assumed that the defendant was negligent because it had not protected the east bank with cribbing'.
Thus, upon a review of all the assignments presented, we find no reversible error.
The judgment is therefore affirmed, with costs.