7 Utah 303 | Utah | 1891
Lead Opinion
This action was brought by the plaintiff, as adminis-
The undisputed facts in the case show that at the time of the accident in question the deceased, Joseph S. Pool, together with two co-laborers, named Powers and Eice, were engaged as car-repairers for the defendant at their shops at Ogden, under the orders of Mr. Starr, their foreman. That on the daydn question Powers and Pool were ordered by Starr to repair a car on the repair track No. 1 in defendant's yard, where it was customary to make slight repairs to cars. At this place there were six or seven parallel tracks besides the main track on defendant's line. That Pool and Powers were engaged in repairing this car in question, and they were in a position under the car near the draw-bars, between the rails of the track, when the noise of an approaching switch-engine warned them of their dangerous position.
Plaintiff produced one Frank J. Powers, who testified in substance that he heard a noise, .and remarked to Pool, who was under the ear: “(I have an idea that they are coming.' He said, 'Yes; they are coming in here.' Says I, 'Let's get out;' and Pool immediately moved to get out on the east side of the car. Mr. Eice [the co-laborer] was standing by the side of the car,
Kilpatrick was a brakeman in the yard, and was sometimes called a switchman. He attended to switching in the yard, and doing ordinary work of a brakeman, and helps to make up trains, and gives signals to engineers to back up and start. Kilpatrick gave the signal to back up, and that caused the accident. Kilpatrick was acting at the time under orders from the yard-master. The duty of the car-repairers was to obey the foreman’s orders, and work in the shop, and make small repairs in the yard occasionally. When Eice spoke to and warned Kilpatrick, the engine was about twenty feet away, and I was under the car with Pool, and heard Kilpatrick make some reply to Eice.” George C. Eice, a witness j>roduced by the plaintiff, testified, in substance, “that at this time Kilpatrick was riding on the steps on the forepart of the caboose as this engine backed down towards our car. I told Kilpatrick, the switchman, not to attach to the car, — not to hit it; that there were men working under the car. The engine came to within six feet of this car being repaired, and stopped after this notice by Eice to Kilpatrick. Soon after this Kilpatrick gave a signal to the engineer for it to come back. The engine came back with great force, and Pool was injured and killed.” The defense offered no proof, and Kilpat-rick was not sworn in the case. Pool was an able-bodied man, of good character, 29 years of age at the time of his death, and was receiving $75 per month from the defendant, and had a wife and several children dependent upon him for support. The jury found as special find
From the testimony given in the case we are satisfied that Kilpatrick was not a fellow-servant of the deceased, but was then engaged in a different kind and department of service, and was not in the same common employment, and was under the orders of a different master. Nor can there be any question made but that Kilpatrick heard the signal from Kice to stop the engine, and that he acted upon such signal, and did stop the engine about six feet from the car in question, under which the deceased was working at the time. The signal was understood by the switchman, Kilpatrick, and obeyed by him. The verbal communication to Kilpatrick to stop the engine was a notice and warning as certain, positive, and safe as if there had been a red-flag signal used in such case. In any event, Kilpatrick received it, understood it, and replied to it, and complied with it at the time, and he would have done no more had there been a red-flag signal placed by the car. Powers and the deceased, Pool, assumed, as they would have a right to assume under the circumstances, and as the jury found, that there would be no danger in proceeding with their work, and before they had completed it Kilpatrick, the switchman, with notice of their position and danger, and without giving any warning, negligently gave the signal to back up, and the engine immediately backed up with
The special instructions were properly submitted by the court to the jury, and their findings under the evidence should not be disturbed. Comp. Laws 1888, §§ 3374, 3978; Webb v. Railway Co., ante, 24 Pac. Rep. 616. So, also, we think the question of negligence or contributory negligence was properly submitted to the jury. In such cases, in order to determine whether an employé, by recklessly exposing himself to peril, has failed to exercise that degree of care for his personal safety that might reasonably be expected, has thus by his own negligence contributed to cause the accident, regard must always be had to the circumstances of the'case, and to the exigencies of his position; and the decision of this question ought not to be withheld from the jury unless the evidence, after giving the plaintiff the benefit of every inference to be fairly drawn from it, so conclusively shows contribu
Section 2962, Comp. Laws 1888, reads as follows : "That every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount received in every such action shall be distributed, by direction and decree of the proper probate court, to such persons (other than creditors) as are by law entitled to distributive shares of the estate of such deceased person, in such proportions as are prescribed by law.” Section 3179, Id., reads as follows: "When the death of a person, not being a minor, is caused by the wrongful act of another, his heirs and personal representatives may maintain an action for damages against the person causing the death ; or if such person be employed by another person, who is responsible for his conduct, then also against such other person. In every action, under this and the preceding section,
What the family would lose by the death would be what it was accustomed to receive or had reasonable expectation of receiving in his life-time. The extent of the loss should not be measured by the wealth or poverty of the recipients or giver, but by his beneficent and pecuniary contributions given, or in reasonable expectation of being given, to the widow and heirs, as shown by the proof and judged from all the circumstances of the case to be just, but measured by pecuniary standard. If the
Dissenting Opinion
{dissenting)'.
This suit is brought to recover damages for the death of Joseph S. Pool, caused, as is claimed, by the negligence of the defendant company. A trial was had, and verdict and judgment for plaintiff. Defendant moved for a new trial, which was overruled, and it appealed. The undisputed facts are substantially as follows: Decedent and one Powers were employés of the defendant company, at work at Ogden, in its repair-shops, and were directed by the foreman to make some slight repairs on a car on a track in the yard. They went to the car, and¡ had to go under it to make the repairs, and did not put out the usual signal — a red flag — for their-
I think Kilpatrick was not a fellow-servant of the deceased, under the rule laid down by this Court in the case of Daniels v. Railway Co., 6 Utah, 357, 23 Pac. Rep. 762. I adhere to that decision, and think it states the best rule, considering the many divers decisions on that subject. The jury found that he was not a fellow-servant, and also his negligence caused the death of the decedent. These findings would sustain the verdict if there was no want of reasonable care contributing to his death on the part of the decedent. This question was also submitted to the jury: “Did the deceased use such care and precaution to avoid the injury as a prudent man in the exercise of due care should have used?” To this question the jury answered, “Yes.” I have disposed of the question as to whether Kilpatrick was a fellow-servant of the deceased. But the important one was, was the decedent guilty of contributory negligence? The jury found he was not. Was that finding right, and, if not right, is the appellate court bound by it? The rule is, if the finding of the jury is clearly and manifestly against the weight of the evidence, the trial court should grant a new trial, and if it fails to do that, it is error, and the appellate court should reverse. Hil. New Trials, 336, 339; Keaggy v. Hite, 12 Ill. 100; Belden v. Innis, 84 Ill. 78; Insurance Co. v. Beck, 74 Ill. 165; Bolton v. Howell, 18 Ind. 181; Smith v. Ireland, 4 Utah, 187, 7 Pac. Rep. 749; Hopkins v. Ogden City, 5 Utah, 390, 16 Pac. Rep. 596.
I think in this case the jury wholly misconceived the force and effect of the evidence. It was all given in behalf of the plaintiff. The decedent neglected to put out the well-known and usual signal of warning, a red flag, because it was too much trouble, and trusted to one
By intrusting their safety to Rice, they took the chances of his carelessness in giving the proper information to the switchman, and the chances of the switch-man hearing and understanding Rice. Their safety would have been certain if the flag had been hung out. It was a- mute and silent warning, but neither switchman nor engineer could have mistaken it, nor would they have disobeyed it. I think, therefore, as a matter of law, that