172 P. 725 | Utah | 1918
The plaintiff, a minor past sixteen years of age, by his mother as guardian ad litem, brought this action to recover damages for the loss of his eye, which he alleged he lost by reason of injury sustained through the negligence of the defendant while he was employed in its roundhouse and machine shop at Caliente, 'Nev., on August 21, 1916. The action is based upon the Federal Employers’ Liability Act. Plaintiff, in substance, alleged that at the time of the injury the defendant was engaged in interstate commerce as a common carrier; that on the 21st day of August, 1916, while the plaintiff was engaged in repairing certain parts of defendant’s passenger engine No. 3425, which was then being used in interstate commerce, he was injured in his eye through the negligence of the defendant, stating the particular acts of negligence in detail; that by reason of such injury he lost his eye and is permanently injured.
The case was submitted to a jury, which found the controlling issues in favor of the plaintiff. The jury also found that at the time of the injury both the plaintiff and the defendant were engaged in interstate commerce. The jury also found that the plaintiff was guilty of contributory negligence, but did not find whether such negligence related to the doing of the work or to plaintiff’s conduct in the treatment of his eye.
The allegations respecting the two grounds of contributory negligence were supported by substantial evidence on the part of the defendant.
The jury found that plaintiff had sustained damages to the extent of $7,500, but reduced that amount, on account of the contributory negligence of the plaintiff, in the sum of $2,500, and thus returned a verdict in his favor in the sum of $5,000 as the damages sustained by him. Judgment was entered on the verdict, and the defendant appeals.
Counsel for defendant has argued four assignments of error: (1) That the evidence “is wholly insufficient to support the finding that the plaintiff was engaged in interstate commerce at the time he received Ms injury, ’ ’ and that for that reason the court erred in submitting that question to the jury; (2) that plaintiff had assumed the risk; (3) errors to the admission and exclusion of evidence; and (4) errors in charging the jury.
Counsel for defendant earnestly insists that the first assignment should prevail. As before stated, defendant admitted that it was engaged in both interstate and intrastate com
It is not necessary to cite authorities upon the proposition that, in order to recover under the Federal Employers’ Liability Act, both the employer and the employee must at the time of the injury be engaged in interstate commerce. Plaintiff’s evidence tended to prove that plaintiff lived with
Defendant’s counsel has cited a large number of cases which he contends sustain his contention that the plaintiff, at the time of the accident, was not engaged in interstate commerce. Among the eases cited upon that point are the following: Minneapolis & St. L. Ry. Co. v. Winters, 242 U. S. 353, 37 Sup.
If, therefore, there is a decision from a federal court which is decisive of the question here, and especially if the federal decision is one that is more recent than the one cited from a state court, it is our duty to follow the federal
In our judgment the decision in the case of Law v. Illinois Cent. Ry. Co., 208 Fed. 869, 126 C. C. A. 27, L. R. A. 3915C, 17, is decisive of the question that the plaintiff,
In view of what is there said, it is also clear that the evidence in this case is sufficient to sustain the finding of the jury that the plaintiff was so engaged at the time of the accident. As before stated, the defendant produced no evidence upon that question, and hence, if there was any substantial
The plaintiff had thus made a prima facie case, and, the defendant having produced no-evidence upon that question, the finding of the jury is conclusive upon this court. After a careful reading of the opinion in the case of Law v. Illinois Cent. Ry. Co., 208 Fed. 869, 872 (126 C. C. A. 27, 30, L. R. A. 1915C, 17), we can see no escape from the foregoing conclusion. That ease, as before stated, was decided
“In the instant case the engine was in the shop for what is called ‘roundhouse overhauling.’ It had been dismantled at least twenty-one days before the accident. Up to the time it was taken to the shop it was actually in use in interstate commerce. It was destined for return thereto upon completion of repairs. It actually was so returned the day following the accident. It clearly did not lose its interstate character from •the mere fact that it was not at the time actually engaged in interstate movement, no more than did the dining car in Johnson v. So. Pac. R. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, while waiting for a train to make the return trip, or than did the car in the Walsh Case while standing on a track awaiting replacement of the drawbar. Were the repairs being made in the roundhouse between two regular daily trips, the engine, while under such repair, would clearly not lose its character as an instrumentality of commerce; and plaintiff, in such ease, would have been engaged in interstate commerce. We have not here a case of original construction of an engine not yet become an instrumentality of interstate commerce. ' It had already been impressed with such use and with such character. Its preservation as such was not a matter of indifference to defendant, so far as its interstate commerce was concerned. See Pedersen Case, 229 U. S. 151-152, 33 Sup. Ct. 648, 57 L. Ed. 1125 (Ann. Cas. 1914C, 153). Under the existing facts, can the length of time required for the repairs change the legal situation? If so, where is the line to be drawn ? How many days temporary withdrawal would suffice to take it out of the purview of the act? And is it material whether the repairs take place in a roundhouse or in general shops? Is it not the test whether the withdrawal is merely temporary in character? As held in the Pederson Case, the*125 work of keeping the instrumentalities used in interstate commerce (which would include engines) in a proper state of repair while thus used is ‘ so clearly related to such commerce as to be in practice and in legal contemplation a part of it. ’ ”
We remark: The case at bar is entirely different from the case of Perez v. Union Pac. Ry. Co., 52 Utah, —, 173 Pac. 236, decided at this term. In that ease the instrumentality which caused the alleged injury, although it may have been used in interstate commerce before the injury, it yet had at the time of the injury been withdrawn from such or any commerce, and hence the plaintiff in that case was not injured while engaged in interstate commerce. In this case, however, the plaintiff was injured while engaged in repairing an instrumentality which before the injury had been exclusively used in interstate commerce and was being repaired so as to be again used for the same purpose and was so used after the injury.
It is next contended that the plaintiff assumed the risk. In view that that defense is available as a complete defense under the Federal Employers’ Liability Act, and especially in view that the jury found the plaintiff guilty of contributory negligence, counsel for defendant has urged that proposition
In this case two independent grounds of contributory negligence were pleaded by the defendant, both of which were supported by evidence produced by it. One of the grounds of negligence related to the plaintiff’s conduct at the time of the accident, which it was contended by the defendant, was really the proximate cause of the injury complained of by the plain
“But the doctrine of volenti non. fit injuria [assumed risk] stands outside the defense of contributory negligence and is in no way limited by it. In individual instances the two ideas sometimes seem to cover the some ground, but carelessness is not the same thing as intelligent choiee,” (Italics ours.)
The distinction is also very intelligently discussed and clearly stated by the author in 3 Labatt, Mast. & Serv. section 1219 et seq. The fundamental element in assumption of risk, where it is not assumed as a matter of contract, as stated
In view of what has just been said, it was the province of the jury to say which one of the two defenses
It is further contended that the district court erred in excluding certain declarations attributed to plaintiff’s mother relating to the treatment of his eye. The
Nor did the court err in excluding the proffered evidence respecting the acts of the mother in treating plaintiff’s eye. The reason why such acts are incompetent evidence
Nor did the court err in excluding the other statements attributed to the mother. True, she had denied them on cross-examination. The questions propounded to the mother were, however, not proper cross-examination, and, in
It is also contended that the court erred in charging the jury upon the question of damages. It is insisted that the court included an element of damages in its charge with respect to which there was no evidence; and, further, that the court permitted plaintiff to recover for loss of
For the reasons stated the judgment should be, and it accordingly is, affirmed; plaintiff to recover costs.