Mahood v. Pleasant Valley Coal Co.

8 Utah 85 | Utah | 1892

Zane, O. J.:

This is an appeal from an order of the district court overruling a motion for a new trial, and from the judgment of the court on the verdict of the jury. This adtion was brought to recover damages in consequence of the alleged negligence of the defendant in furnishing for the use of the plaintiff, who was in its employ, a railway car with a defective brake upon it. It appears from the evidence in the record that the railway company, according to its custom, left this car upon a side track six hundred or eight hundred feet from the chute of the Pleasant Yalley Coal Company, and that it ran down the grade, as usual, by the force of gravity; that Christensen and Bearn-son, also employes of the defendant, were upon the car, and tried to stop it, but, the brake being defective, they failed, and called to plaintiff to block it; that he took one of the blocks lying near the track, apparently for that purpose, and attempted to put it on the rails in front of the wheels, but, not placing it straight across, it slipped before the wheels, and while plaintiff was trying to fix it, and stop the car by that means, the end of the block came in contact with a trestle post, and caught plaintiff’s left hand, and smashed his little finger, so as to necessitate its amputation, and broke the next one, and otherwise injured the hand. The defendant insists that the evidence does not prove that the injury complained of was caused by defendant’s negligence. It does.appear that the brake was so defective at the time of the injury that it would not stop the car, and that it would have done so if it had been in repair. The witness Christensen testified that Bearnson and himself, a short time before the injury, were unable to stop the car with the brake, and that Wimber, defendant’s foreman, was present at the time. Wimber denied this. But the jury were at liberty to believe the former. The evidence does not disclose any motive on his part to testify falsely. While proof of a knowledge of the defect before the injury would subject the latter to an imputation of negligence, precisely when the defect in the brake first became manifest the evidence does not show. If the foreman knew that it would not stop the car, it was negligence in him to send it down the grade, as the evidence tends to show he did, and for his negligence the defendant was chargeable. As urged by the defendant, the plaintiff cannot recover if he was guilty of negligence that contributed to his injury. If he had taken a short block, or had let loose of it sooner, his hand would not have been caught. The evidence shows that both long and short timbers for blocking the cars were placed beside the track. The men on the car being unable to stop it with the brake, called out to the plaintiff, who did not know that the brake was defective, to chock it. He had but little time to select his block or to use care in putting it on the track, or, when trying to fix it when it was slipping before the wheels, to look out for obstructions. He would naturally take up the nearest block, and aína to place it so as to stop the car, and, when it slipped, to fix it so that it would not. When men are suddenly confronted with dangér, their conduct should be judged of in the light of the circumstances that constitute the emergency. The jury did not find contributory negligence on the part of the plaintiff, and we are not prepared to say it was wrong.

The defendant also urges excessive damages as a ground for reversal. It appears from the record that the plaintiff's hand was caught between the timber he was using and a post; that it was held for a time; that one man struck the timber to loosen it, and it caused him so much pain that he asked the person to quit, and that bars were obtained, and that the car wheel was pinched back off of the timber, and in that way the hand was released; that at the time of the trial, a year after the injury, the hand was weak and stiff, and he could lift, but little with it; that the little finger was lost, and another finger was broken and stiff; that hé suffered great pain at the time of the injury and afterwards; that plaintiff was twenty-five years old. In estimating plaintiff's damages, it was the duty of the jury to take into consideration the entire injury; his loss of time, and the extent that it would incapacitate him to earn money in the future; his physical pain and mental anguish in consequence of it. In view of such considerations, it was the duty of the jury to allow the plaintiff such a sum as the evidence warranted. When a jury has assessed damages in a case like this, the court will not set the verdict aside on the ground that they are excessive, if it has any reasonable doubt that they are so. The majority of the court are of the, opinion that the damages named in . the verdict • are excessive, and that the judgment of the court below thereon should be reversed, and a new trial ordered, unless the plaintiff remits $1,000 of the $4,000' named in the verdict.

Defendant’s foreman was called as a witness, and testified that he always instructed any new employe not to use the long blocks; that it was his general custom to do so; and the plaintiff also introduced one who stated, in rebuttal, that at times it became his duty to block the cars at the same place; and that he Avas never instructed to use the short blocks, and that he never heard or knew of any such instructions, custom, or rule. We are disposed to hold that there was no error in the admission of this evidence.

Defendant also alleges that the. court erred in certain portions of the charge to the jury, and in refusing to give requests asked by its counsel. But, after a careful examination of the charge, we are of the opinion that it was substantially correct, when all considered together, and that the law applicable to the evidence, so far as material, was announced to the jury. Upon the remittal of $1,000 of the judgment by the plaintiff, the judgment will be affirmed for $8,000; otherwise it will be reversed. In either case, the clerk will tax the costs of this appeal against the respondent.

AndeRSON, J., and Mines, J., concurred.