104 P. 736 | Utah | 1909
The plaintiff brought this action to recover damages for the death of her husband, alleged to" have been caused by the defendant’s negligence.
It is alleged in the complaint that the defendant negligently ran and operated “a certain train known as ‘section No. 2’ of train No. 81 at a high and dangerous rate of speed into and against a certain train known as the ‘first section’ of train No. 81, and in disregard of the schedule which it had theretofore established for the running of trains,” whereby the deceased, who was the conductor of the first section, was killed. The defendant denied the alleged negligence, and pleaded contributory negligence and negligence of fellow-servants. The two sections' .were made up> at Black Rock, Utah. W. C. Guernsey was the conductor of the second section. The crews of both' sections received orders from the train dispatcher to leave Black Rock and run to Caliente, Nevada. The first section left at about 9:55 p. m. of the 4th day of February. The second section left about thirty or forty minutes later. No further orders were received from the dispatcher by either crew1. The collision occurred about one and one-quarter miles east of the east switch at or near Beryl, Utah, on February 5th, at about 4:25 a. m., as testified to by some witnesses, or at 4:30 or between 4:28 and 4:29, as testified to by others. The station there consisted of only a switch track and a water tank. The distance between the east and west switch is three thousand feet. Freight train No. 81 was scheduled on the time card to leave Beryl at 4:30 a. m. The last
It is further shown that at tbe time of tbe accident one of the injectors on the engine of the first section — an apparatus which automatically fed water from the tank into tbe boiler — gave the engineer some trouble, and bad bothered him for the last eight, or ten miles, and bad given him more or less trouble during tbe trip¡. Tbe engineer of that section testified that he was working on the injector at the time of .the accident, and because it did not work properly tbe steam was shut off, which reduced tbe speed of tbe train. Tbe morning was very dark and foggy. Tbe first section displayed tbe usual tail lights on tbe rear of tbe caboose. The average speed of the train in the vicinity of the accident, as shown by the time card, would be 10.7 miles per hour, and over the entire division 13.5 miles. A number of rules
Rule 91:
"Trains in the same direction must keep, at least five minutes apart, except in closing up at stations or at meeting and passing points.”
Rule 92:
“A train must not arrive at a station in advance of its. schedule time. A train must not leave a station in advance of its leaving time.” '
Rule 98a:-
“Stations having yard limits will he designated in special rule in time-table. All trains and engines will have the right to work within such yard limits regardless of all except first-class trains, but will give way as soon as possible upon their approach. All except first-class trains will approach yard limits under full control and be prepared to stop within the limits of vision. The responsibility for accident at such points will rest with the approaching train. At such stations as have no yard limit signs, the limits will be considered to be between extreme switches.”
Rule 9:
“The speed of passenger trains will ordinarily be that prescribed in the schedule, but in case of delay, requiring a greater speed in order to enable trains to make meeting points or to secure connections, the speed may be so moderately increased above that prescribed in the schedule as in the judgment of the conductor and engineman in charge of the train may be safe and prudent, due consideration being always given to conditions of track and all the circumstances. Freight trains will not exceed a speed of thirty miles per hour, i. e., will consume not less than two minutes in running each and every mile.”
Rule 99:
“When a train stops or is delayed' under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When required, he may return to his train, first placing two torpedoes on the rail when the conditions require it. The front of a train must be protected in the same way when necessary by the fireman.”
The first assignment of error relates to the ruling of the court in admitting in evidence rule 98a. The objection made to its admissibility was that it was immaterial and irrelevant. We think the rule was relevant and
The conductor of the second section, a witness on behalf of the plaintiff, was asked: “When were you due at Beryl ?” The question was objected to on the ground that “it is incompetent and not the best evidence; that the timetable in evidence is the best evidence.” The objection was overruled, and the witness answered that “it depended on how late the first section is. The second section had to be
The trainmaster of the defendant, a witness called in behalf of the plaintiff, was permitted to testify, over the defendant’s objection, that the defendant made, and that the witness held, an investigation of the accident; that he had power to employ and discharge men; that it was his duty to make an investigation and to report findings to the supers intendent; that he was subpoenaed to-bring with him the report of the investigation, and that he did not produce it because it had been transmitted to the superintendent. When this evidence was offered, it was stated by plaintiff’s counsel that they “desired to show an admission made by the company with regard to this accident after having full knowledge of it.” Guernsey, the conductor of the second section, testified that he was discharged on the day of the accident, and that on the 14th day of February, a “service letter” was issued and delivered to him by the division superintendent, and that he lost the letter. Notice was given to the defendant to produce a copy of it. In response to the request, the defendant brought into court a letter book entitled “sérvice letters from Aug. 1903, to -,” containing copies of service letters, including the one issued
“San Pedro, Los Angeles & Salt Lake Railroad Company, Salt Lake Division. Employee’s Service Certificate. Salt Lake City, February 14th, 1906. This is to certify that Willard C. Guernsey has heen in the service of this company as follows: Conductor . . . from second month, second day, 1905, to second month, fifth, day, 1906. Cause of leaving, discharged. . . . Specify conduct and cause of leaving: Discharged while on train 2nd No. 81, February 5th, 1906; ran down train 1st No. 81, which was on time, causing rear end collision. Dismissed from the service on account of his utter disregard of the time-table, rules and instructions.”
This letter was signed by “H. E. Van Housen, Superintendent.” On the upper left-hand corner was stamped, “S. P., L. A. & S. L. N. N., Salt Lake Division, February 14, 1906. Office of Superintendent, Salt Lake City, Utah.” It was shown that H. EL Van Llousen, tbe person who issued and signed tbe letter, was tbe superintendent of tbe division in wbicb tbe accident occurred. Tbe admission of tbe letter in evidence was objected to on tbe ground that it was immaterial, incompetent, and hearsay; that it contained a mere narrative of past events, was not a part of tbe res gestae, and was only tbe conclusion of tbe person writing it. Tbe objection was overruled and tbe copy admitted in evidence. Complaint is made of this ruling. Tbe respondent seeks to uphold tbe ruling on tbe doctrine that the principal is bound by tbe authorized admission of bis agent. In this respect it is contended: (1.) That tbe relation of agency between tbe defendant and tbe writer of tbe letter was undisputed; (2) that tbe admission or states ment in tbe letter pertained to a matter within tbe scope of tbe agent’s authority; and (3) that tbe admission constituted a part of tbe res gestae of a transaction in wbicb tbe
Tbe rules of evidence permitting tbe immediate and spontaneous declarations and acts of persons to be received in evidence as an exception to tbe hearsay rule, when they are a part of tbe res gestae of a transaction itself admissible in evidence and, and permitting declarations and acts of tbe agent to be received in evidence as tbe declarations or acts of tbe principal himself, “involve two distinct and unrelated principles.” (Wigmore, Ev., sec. 1078.) But in either case, to render tbe declaration or act admissible, it must be a part of tbe res gestae of a transaction itself admissible in evidence. In tbe one case tbe admission of tbe declarations or acts rests on tbe principle that they are intimately interwoven with tbe transaction of wbicb they are a part, and that they are tbe spontaneous expression of
The contents of the letter, the alleged admission, bore directly upon two issues: One in respect of the care or negligence of the crew of the second section, especially that of Guernsey, the conductor of that crew; the other, the care or negligence of the deceased and mémbers of his crew. That Guernsey and his crew upon the evidence adduced independently of the admission were guilty of negligence in the running and operation of their train is not open to much, if any, controversy. The evidence showing that the second section was run in violation of rules 91 and 98 a, and of the time-table, and as stated by the superintendent in the service letter, is substantially without conflict. But it is recited
It is further contended that the court erred in charging the jury that the deceased and the train crew of the second section, including Guernsey, were not fellow-servants. The statute defining who are, and who are not fellow-servants, is as follows:
“All persons who are engaged in the service of such employer and who, while so engaged, are in the same grade of service and are working together at the same time and place and to a common purpose, neither of such persons being intrusted by such employer with any superintendence or control over his fellow employees, are fellow-servants with each other; provided, that nothing herein contained shall be so construed as to make the employees of such employer fellow-servants with other employees engaged in other departments of service of such employer. Employees who do not come within the provisions of this section shall not be considered fellow servants.”
It is made to appear that the two sections of the train were run and operated as two' distinct and independent trains, and that the defendant regarded and treated them as being subject to the rules applicable to the running and
“While the grade of employment may he said to have heen the same, they were not working together at the same time and place, nor to a common purpose. The purpose' contemplated hy the statute is of an immediate, and not ulterior, purpose. It might as well he said that the train crew in charge of the train that carried the ties and placed them on the spur t-rack were working to a common purpose with the crew that unloaded - and stacked them for the purpose of having them treated with creosote, as that appellee’s crew were fellow-servants of the dinkey-track crew; and in the same manner might it he reasoned that the men who cut the timber we,re working to a common purpose with the track layers. It seems that the purpose here, within-the meaning of the statute, is that of unloading and stacking the ties ready for the crew that took them down and unloaded them ’onto the dinkey trucks. But all of the conditions of the test must be met. Were they working together' at the same time and place? It is true that ‘at’ may indicate nearness only in point of time and place; hut again the*326 train crew furnishes an illustration. They reach nearness in point of place when they shove the loaded car onto the spur track, and may do so in point of time when the crew to unload the car take it and commence their work. Certainly these two crews would not he fellow-servants. There is a distinct line drawn between the time of the work of the crew on the spur track and the dinkey crew and one almost as distinct as to place. The intent of the law is to relieve the master from liability only when the servants are brought into such contact with each other that they might see the danger and presently prevent it. They are thus made careful for each other only to the extent of acts presently done, and not those done by servants distant in point of time or place, of which they have had no opportunity to know.”
In tbe case of Gulf, C. & S. F. Ry. Co. v. Warner, supra, the Texas court also said:
“The distinctive characteristics prescribed by the statute as essential to be found concurring and common to two or more employees in order to constitute them fellow-servants are: First. They must be ‘engaged in the common service.’ As here used, ‘service’ means the thing or work being performed for the employer at the time of the accident, and out of which it grew, and ‘common’ means that which pertains equally to the employees sought to be held fellow-servants, and therefore ‘common service’ means the particular thing or work being performed for the employer at the time of the accident, and out of which it grew, jointly, by the employees sought to be held fellow-servants. The members of a crew running a train, though each be in the performance of different acts in reference thereto, are all ‘engaged in the common service,’ for they are jointly performing the thing or work of managing the train for the employer; but they would not be ‘engaged in the common service’ with the members of a crew running another train for the employer over the same road for one crew would be jointly performing the thing or work of managing one train, while the other would be jointly performing the thing or work of managing the other train.”
We think the construction placed upon the statute by the Texas court better reflects the legislative intent and the purpose sought to be accomplished by the statute than that which was placed upon a similar statute by the Missouri court in the case of Strottman v. St. Louis, I. M. & S. Ry. Co., 211 Mo. 227, 109 S. W. 769, where it was held that an engineer operating a train was a fellow-servant with a telegraph
It is said that, while it may be difficult to ascertain the point on which Chief Justice Zane and Mr. Justice Miner
We. think no error was committed in the charge complained of, nor in other rulings involving the question of fellow service.
For the reasons heretofore given, the judgment of the court below is reversed, and the case remanded for a new trial. Costs to appellant.