23 Utah 42 | Utah | 1900
The plaintiff brought this suit to recover damages for personal injuries which he claims he received, through the negligence of the defendant, while in its employ as a brakeman, in attempting to couple cars on its railway tracks. At the trial the jury returned a verdict in his favor for the sum of $5,000, and, from the judgment entered in accordance therewith, the defendant appealed, and has assigned various errors claimed to have been committed during the trial of the cause. Erom the record, among other things, -it appears that the injury complained* of was received on July 12, 1898, at Mammoth, Utah. At the time of the accident the plaintiff was coupling cars, and, in so doing, had one of his feet caught between the guard rail and main rail of the track, and, finding that he was unable to extricate himself, threw himself outside the track, when the car ran over his foot, crushing it, and necessitating amputation above the ankle. There is some question under the evidence as to whether, at the exact spot where the accident occurred, the railway track belonged to the defendant company, or to the Oregon Short Line Bailway Company, the tracks of the two corporations connecting near that point, but from the view we have taken of this case, as it is now before us, we do not deem it necessary to determine this question. The more serious question is
The witness further stated: “I didn’t see A1 Cunningham at all on the morning of the twelfth. Did not know where he was on the eleventh. I saw him at the Mammoth office, which was I think 600 or 800 feet from where I was standing on the cars when I saw him.”
Jones, the engineer, on behalf of the defendant, testified : “I knew of the plaintiff leaving the employ of the defendant company about the middle of June, 1898. I think the next time I saw him was on July 10. On July 11 he worked on the train. He was standing by the engine, and I asked him if he would help me that day, as I wanted to go
A1 Cunningham, the superintendent of the road, as a witness for defendant, stated: “I was not at the Mammoth office nor at the mill that forenoon. Did not see the plaintiff on the train of the defendant railway company on the eleventh day of July, nor the next day. Did not see him until after the accident, when he was at the Kirkendall hotel.”
James A. Cunningham, respecting the conversation, testified to by the plaintiff, as having taken place in Salt Lake City, sworn as a witness, said: “He spoke about going-back to work, and I told him no. Says I, Him I think you are too clumsy to brake; you are liable to slip and get hurt or kill yourself, or get someone else hurt. I don’t think you had better work on the railroad.’ ”
In view of this evidence counsel for the defendant requested the court to charge the jury as follows: “Jones, the engineer, did not by virtue of his position as engineer, have any authority to employ the plaintiff as a brakeman for the defendant. And if he engaged the plaintiff to assist him in
In this form the request was refused, but the instruction was then given with the modification: “Unless you further find from the evidence that the defendant, or its agent, either knew of such employment and acquiesced therein, or that the defendant, or its agents, on the day of the accident and prior to such accident, saw plaintiff working on and about said train assisting said engineer, and made no objection thereto.”
The appellant contends that the instruction as modified, is, under the facts disclosed, erroneous, and we are of the opinion that this contention is sound. The instruction as requested, without the modification, appears to state the law, applicable to the facts, correctly. There is nothing to show that the engineer had authority to employ any one for the company; nor does it appear that such an exigency existed as might have authorized him to employ the respondent as brakeman. If, then, as indicated by his testimony, the engineer asked the respondent to help him or employed him for his own convenience, or because he wanted to get away early, or to attend to some business of his own, then the respondent did not, because of such employment become the employee of the company. Nor do the. facts warrant the first clause of the modification which, in effect, says that the respondent was an c employee, if the defendant, or its agent, knew of such employment and acquiesced therein. The evidence fails to show that either the company, or any of its agents, “knew of such employment,” and without knowledge of such employment there could, under the circumstances, have been no acquiescence therein. So, under the facts disclosed, the second clause of the modification is objectionable, because, first, the evidence does not show that on the day of the accident any officer or agent
It was evident that the request, as modified, was not applicable to the facts disclosed by the evidence, and as it was given to the jury in that form it necessitates a reversal of the case. The suggestion that the specific objectionable matter was not pointed out by counsel in taking the exception to the action of the court in the premises,'can not avail the.respondent, since the exception relates to a request, which was deemed excepted to, and not to an original instruction given by the court of its own motion.
The appellant also complains of the admission of certain testimony which, it is claimed, was immaterial and prejudicial. The plaintiff, as a witness in his own behalf, was asked by his counsel the following question: “Who paid your expenses at the hospital ?” To which the witness replied: “It is not paid.” Counsel for appellant objected to the question as being immaterial, and moved to strike out the answer, but both the objection and motion were overruled. We are of the opinion that this testimony was erroneously admitted. In the
We do not deem it important to discuss any other question presented in the record.
The case is reversed with costs, and the cause remanded in order that a new trial may be granted.