201 Utah 405 | Utah | 1921
Lead Opinion
The respondent, as administratrix of the estate of Arthur 0. Perrin, deceased, brought this action to recover damages for his death. The damages are sought for the benefit of herself as the widow, and one minor child, Florence W. Perrin.
At the time of the accident, appellant was engaged in interstate commerce, and deceased was in its'employ as a rear brakeman. Recovery is therefore sought under the federal Employers’ Liability Act (35 U. S. St. L. 65, c. 149; U. S. Comp. St. §§ 8657-8665). Two trials were had. The first resulted in a verdict in favor of appellant. Thereafter the district court granted a new trial. That ruling is assigned as error on this appeal. The record of the first trial is preserved in the bill of exceptions, and is therefore before
The court, in its instructions upon the first trial, limited the consideration of the jury to one ground of negligence, namely, Did. appellant after deceased went between the cars, move the train without giving the deceased notice of its intention to do so, and, if so, did the same constitute negligence upon which respondent could recover? Two of the grounds claimed for a new trial were: (a) Errors in law occurring at the trial; (b) insufficiency of the evidence to justify the verdict. The district court, as indicated by an entry in the record, was of the opinion that it had erred in not submitting to the jury both grounds of negligence alleged in the complaint and in limiting the consideration of the jury to .one ground only.
Appellant contends that at the first trial no error was committed that justified the granting of a new trial. It is argued that the mere fact that the court may have committed errors of law, or that the verdict was not, in the judgment of the court, what it should have been under the evidence, .does not authorize granting a new trial; that there was testimony in the record from which the jury could reasonably conclude that the respondent had failed to establish her right to recover, and it was therefore error on the part of the district court to grant a new trial.
Reliance is had upon the opinion of this court in Hirabelli v. Daniels, supra, to support appellant’s contention. In the Hirabelli Case the district court granted a new trial for the reason that the jury had, in the judgment of the court, determined the damages in an amount less than the court thought the evidence warranted, and this court held that an
“We are indeed slow to interfere with, a ruling granting or refusing a new trial on questions relating to damages, hut a court on the measure of general damages cannot tie a jury to only pain suffered, and when they follow and obey that instruction, then set the verdict aside, not for a misdirection, hut on the ground that they disregard or misconceived the instructions and rendered a verdict which the court thinks does not adequately compensate the plaintiff for his general damages.”
In the present case the district court granted a new trial for the reason that it had limited the consideration of the jury to one ground of negligence. The complaint charged two acts of negligence, and there was testimony, in the judgment of the court, tending to establish both. The new trial was granted, not because the jury had disregarded or misconceived the instructions and rendered a verdict which the court did not think adequately compensated respondent, but rather for a “misdirection,” or a failure to instruct upon an issue presented by the pleadings. The court was of the opinion that such issue had some support in the testimony. However, as this court is of the opinion that there was no testimony at either trial tending to prove that the condition of the angle cock was the cause of or contributed to the injury, no opifiion is expressed as to whether granting a new trial would have been an abuse of discretion if there had been no other grounds authorizing or justifying such action. There are other reasons which, in our judgment, warranted the court in granting the motion.
At the first trial the plaintiff requested the following instruction,:
“You are instructed that in the absence of evidence there is a presumption that the deceased, Arthur C. Perrin, used due care in and about the work that he was engaged in. when he was killed; and that he did all that was reasonably required of him for his protection while so engaged.”
It is contended that the foregoing request is not a correct statement of law, and the refusal to give an erroneous instruction is never ground for granting a new trial, although the litigant may have been entitled to an instruction relating
Moreover, at_fche first trial the engineer testified as follows:
“Q. Now, at the time the train, stopped, the light at the rear end of the train was still visible, as I understood you a little while ago? A. Yes, sir.
“Q. The lantern light, did you afterwards see it disappear? A. yes, sir.
“Q. And when, with reference to the time you stopped the train? A. Why, the train was stopped when it disappeared.
“Q. The train was stopped when it disappeared? A. Yes, sir.
“Q. And when, with reference to that stoppage, did it disappear? A. Well, I don’t know. I didn’t pay- any attention. It disappeared right away.
“Q. Now, when you say the train was stopped do you mean the entire train was stopped, or that the engine was stopped and the car next to you? A. As far as I know, the whole train was stopped.”
That testimony was nowhere contradicted. After the train became stationary it could only move by some act of the engineer, either some movement of the engine or-by releasing the air on the brakes, thereby permitting the slack of the ears to run out. In either event the defendant could be charged
Appellate courts will not set aside an order granting a new trial unless there is an apparent abuse of discretion. Valiotis v. Utah-Apex M. Co., 55 Utah, 151, 184 Pac. 802; Hirabelli v. Daniels, supra; Van Dyke v. Ogden Sav. Bank, 48 Utah, 606, 161 Pac. 50; Salt Lake Inv. Co. v. Stoutt, 54 Utah, 100, 180 Pac. 182; Fitger v. Guthrie & Co., 89 Minn. 330,
Respondent was permitted to file an amended complaint. It is alleged that appellant is engaged in interstate commerce as a common carrier by railroad between Ogden, Utah, and Omaha, Neb.; that the deceased was at the time of the accident, to wit, on September 22, 1916, employed by appellant in such commerce as brakeman upon one of its trains; that at said time the appellant was transporting over its road, at or near a station known as Red Desert, in the state of Wyoming, a certain car equipped with power train brakes, which, together with other cars likewise so equipped, made up a train of railway cars at that time operated by appellant in said
The answer to the amended complaint denied the acts of negligence. The appellant further alleged that the deceased assumed the risks and dangers- of the employment and that the injury was caused through his own negligence.
There is little, if any, dispute as to- the facts. The accident happened at or about the hour of 9:30 p. m. The deceased was employed as a rear brakeman on a freight train traveling east on the line of appellant’s railway in the state of Wyoming. The train arrived at Red Desert station about the hour indicated. The train was composed largely of coal cars. At a station west of Red Desert four or five additional cars, known as outfit ears, were placed in the train immediately ahead of the caboose. These cars were to be left at Red Desert. For that purpose a stop was made and the caboose disconnected from the train. The caboose was left standing on the main track. The outfit cars were placed on a siding. The remaining cars were pulled onto the main line and the engineer proceeded to back the train to couple onto the caboose. The deceased took his station at the east or front end of the caboose. The conductor, one Mr. Marti, was some 9 or 10 car lengths further east. The train was backing slowly toward the caboose, and when within about 20 or 30 feet of same the deceased, as part of his duty, gave a “slow down” or “stop” signal, indicating to the engineer that the rear of the train was approaching the caboose. Accordingly, the engineer ap
After the accident the train was moved forward and set out on a side track where it remained until some time after midnight. A special crew came from Rawlins, Wyo. and the train was taken to that place, arriving there about 7 o’clock on the following morning. At that time it -became the duty of the brakeman who accompanied the train from Red Desert to disconnect the caboose from the car immediately ahead. He testified that he found the angle cock of the air hose difficult to operate, to such an extent that it was necessary in cutting- off the air to strike the handle which controlled the valve with a hammer or brake rod.
At the close of the testimony appellant moved for a directed verdict upon the following grounds: (a) That there was no proof of any act of negligence alleged in the complaint, or otherwise; (b) assuming the angle cock was out of repair, it was not shown that said defect was the proximate cause of the injury; (c) whatever condition existed which caused the injury was a condition known to the deceased, the dangers of which he assumed; (d) assuming that the defective condition of the angle cock was the proximate cause of the death, there is ryo proof that appellant knew, or, by the exercise of ordinary care could have known, of such condition. The court denied the motion. The refusal of the court' to grant the motion, and its refusal to give a peremptory in
There was no direct evidence as to just how the accident happened. It was the duty of the deceased to go between the cars, after coupling was made and the train became stationary, to connect the air hose and open the angle cock between the train'and the caboose. Under the facts disclosed by this record, the respondent was entitled to the presumption that the deceased was, at the time of the accident, in
The testimony, considered in connection with the physical conditions found at the place at the time of the injury, establishes conclusively that the accident resulted from one of four conditions or state of facts: (1) Either the deceased went between the cars while the train was still in motion, connected the air hose while the train was still moving, set the lantern down in an upright position, and was then knocked over or tripped and fell while the train was still moving; or (2) the deceased went between the cars while the train was still moving, made the connection of the air hose, was either knocked over or tripped, and in falling the lantern was in some way knocked from his grasp and fell to the ground in an upright position near the center of the track; or (3) deceased went between the cars while the train was still in motion, succeeded in making the coupling of the air hose, set the lantern down at the time the train became stationary, and left it in an upright position for the purpose of opening the angle cock, and the train afterwards moved and deceased was knocked under the wheels, resulting in death; or (4) the deceased went between the cars after the train became stationary, placed his lantern on the ground either before' or after making the coupling of the air hose, and the train then moved and the injury resulted. If either the
This court, in harmony with the weight of authority, is committed to the rule that—
“If the probabilities are equally balanced that the accident was produced by a cause for which the defendant is responsible or by one for which he is not, the plaintiff must fail.” Tremelling v. Sou. Pac. co., 51 Utah, 189, 170 Pac. 83.
To hold that the first or second state of facts is as reasonable or probable, under the conditions and circumstances disclosed by the record, as the third or fourth,
The respondent relied upon, and had a right to rely upon, the physical facts to show that the appellant was negligent as charged in the complaint. In Dodge v. Toth,
“This witness named Barter, was one of the occupants of the automobile. His testimony was interpreted by the court, and perhaps correctly, as showing that Dodge was walking on his left-hand side of the road. With this interpretation in mind, the court said that the plaintiff offered no evidence in support of her allegation that the deceased was walking on his right-hand side of the highway, and, furthermore, that if the jury disbelieved Barber, as they were privileged to do, the result would be that the case would be barren of evidence tending to show due care on the part of Dodge. Underlying this statement of reasons is a serious disregard of the existence or importance of the physical facts in evidence attending the accident which the plaintiff relied upon and had the right to rely upon to show that Dodge was without fault.”
It is, in our judgment, idle to argue that there is no proof that the train moved after deceased went between the cars. It is likewise idle to contend that the train did not move after deceased had coupled the air hose. The location of the lantern and the position of the body of deceased both conclusively prove the contrary. The duty of the deceased required him to go between the cars, when they became stationary, to connect the air hose and open the angle cock. Going . between the cars while the train was in motion was not
The engineer stopped the train by the application of the air brakes. It should be remembered that so long as the air on the brakes was not released the train could not move. Therefore, if the train moved after becoming stationary, it could only do so by one of two ways, either by the engineer releasing the brakes on the train and permitting the slack to run out, or by some movement of the engine. It is in the testimony that the train did stop. The air on the train was not released until after the train came to a full stop. The engineer testified to that fact. The engineer also received the stop or slow down signal. It is not clear from his testimony on the second trial whether he received the signal from the conductor as relayed to him, or whether he saw the signal as given by the deceased, but that he received the signal and immediately applied the air is without dispute. The engineer, as an experienced railroad man, knew that when the train stopped it was the duty of the deceased to go between the cars and connect the air hose and open the angle cock. When that was accomplished it was his duty to. give the signal indicating that the train was ready to proceed. The conductor testified that at about the time the train became stationary the lantern light disappeared, apparently going between the cars. It must be held, therefore, that not only
It is strenuously argued on behalf of appellant, both in the original brief and in tbe brief on rehearing, that there is no proof of negligence on tbe part of appellant; that negligence is never inferred or presumed; that until there is some testimony showing negligence tbe court has no right to indulge in presumption or inferences, and in doing so is departing from tbe rule that has been frequently recognized by this court. Numerous cases are cited from this and other courts bolding generally that it is incumbent upon tbe plaintiff in a damage case to prove negligence, and that
The Supreme Court of Oregon, in Geldard v. Marshall, 43 Or. 438, 73 Pac. 330, says:
“In an action by a servant against his master to recover damages for an injury, the burden of proof is on the plaintiff to show the negligence charged, and the mere happening of the accident is ordinarily not sufficient. * * * But it is not necessary that there should be positive proof of negligence. It, like any other fact, may be inferred from the circumstances. There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury.”
That rule of law received the approval of this court in Dearden v. Railroad, 33 Utah, 147, 93 Pac. 271. The court, at page 152 of 33 Utah, 93 Pac. 272, says:
“However, it is not essential, before a fact is made evident, that its existence be established by positive or conclusive evidence,*17 especially when it pertains, as here, only to the identity of a thing. If such were the case, the rule of evidence permitting the drawing of inferences and the deducting of facts from other facts is rendered useless.”
The same rule of law again received the approval of this court in the recent case of Johnson v. Silver King Con. M. Co., 54 Utah, at page 34, 179 Pac. 61. See, also, Calvin v. Brown & McCabe, 53 Or. 598, 101 Pac. 671. The court, therefore, did not err in denying the motion for directed verdict or'in refusing to give the peremptory instruction to return a verdict for defendant.
A majority of this court are of the opinion that no testimony is found in the record that the defective condition of the angle cock, if it was defective, contributed to or caused the injury. If it be conceded that there is testimony tending to show that the angle cock was in a defective condition, it is not shown that the deceased attempted to open the same, or that its condition in any way contributed to or caused the accident.
No request was made to the district court to withdraw that issue from the consideration of the jury. No instruction was asked advising the jury that there was no evidence in the record upon which a judgment on that issue could be supported. No assignment is found in the record complaining of such issue having been submitted. It is first suggested in the petition for rehearing. It is therefore argued on behalf of respondent that any error the district court may have made in submitting that issue to the jury is not
In Teakle v. Railroad, 32 Utah, at page 284, 90 Pac. 405, 10 L. R. A. (N. S.) 486, the court says:
“If the court erred in directing a verdict, such ruling ought to have been assigned, in order to authorize us to review it. The assignment of error is the foundation upon which rests the right of the appellate court to review the errors imputed to the trial court, and this court has repeatedly held that only such errors as are*18 assigned will be reviewed, unless it is something which goes to the jurisdiction of the court.”
Again, in Andrews v. Free, 45 Utah, at page 508, 146 Pac. 556, it is said:
“If the defendants are right in their contention, then should the case have been withheld from the jury? Por the actionable negligence is predicated on an alleged failure of the defendants to furnish him a safe place to work. Whether a duty was or was not imposed on the defendants as a master to furnish a safe place to work was for the court. If, on the undisputed evidence, as is argued, no such duty was imposed, then should the case have been withheld? But to impute error to the court in such particular required a motion or request on that ground to so withhold the case. No such motion was interposed.”
See, also, Van Cott et al. v. Wall, 53 Utah, 282, 178 Pac. 42; Sargent v. Union Fuel Co., 37 Utah, 392, 108 Pac. 928; Smith v. Nelson, 23 Utah, 512, 65 Pac. 485.
The motion for a directed verdict is not based upon the theory that there was no evidence authorizing the submission of the defect to the jury. The error of the court, if error was committed in submitting the question of the defective angle cock to the jury for consideration, is not before this court for review.
Error is also assigned for certain statements made by counsel in arguing the case to the jury, to which statements appellant noted an exception. The court was not requested to withdraw the remarks or to instruct the
As stated, the defendant was engaged in interstate commerce, and this action is brought under the congressional act known as the federal Employers’ Liability Act. By the third section of that act (U. S. Comp. St. § 8659) the fact that the deceased may have been guilty of contributory negligence would not bar recovery, but such fact could be
It is also contended that the deceased assumed the risk of the dangers incident to his employment. If it be conceded that the defendant has presented by its pleadings the issue of assumption of risk, it is a sufficient answer to that contention to say that, if the injury resulted from the negligence of the defendant, the deceased did not assume
Some complaint is made of the failure of the court to give instructions requested by appellant and of certain instructions given. A careful examination of the instructions convinces us that the court fully and fairly instructed the jury upon the issues presented by the pleadings, and upon which there was testimony for-the consideration of the jury.
The former opinion of this court is recalled. This opinion will be published as the opinion of the court.
We find no reversible error in the record. The judgment is affirmed. Respondent to recover costs against appellant.
Dissenting Opinion
(dissenting). I am unable to concur in either the reasoning or the conclusions of Mr. Justice GTDEON. In view, however, that the differences between us are radical and irreconcilable, a mere formal dissent would do justice neither to my Associate nor to myself. I shall therefore state the material facts as I understand them, and, in connection therewith, also state my view of the law which, in my judgment, controls this case.
The case was tried twice in the district court of Weber county. The first trial resulted in a verdict in favor of the defendant. Plaintiff, in due time, filed a motion for a new
While the appeal in this case is from the last judgment, the defendant has, nevertheless, preserved the proceedings had on the first trial in the bill of exceptions, and it asks us to review the proceedings had on both the first trial and the second trial.
The case was first submitted in this court in the October, 1920, term. An opinion affirming the judgment of the district court was duly filed. A petition for rehearing was, however, filed in due time, and a rehearing was granted in April of this year. The case was reargued and resubmitted in the May term of this year. While the writer hereof had prepared a dissenting opinion, he nevertheless did not file the same, but, with much reluctance, concurred in the opinion as first filed. He voted for a rehearing, however, for the reason that he entertained grave doubt respecting the correctness of the conclusions reached in the first opinion. Since then, the writer has had occasion to more carefully read the record, and also to more fully examine into the law which, in his judgment, controls this case.
I have now become thoroughly convinced that the findings of the jury and the judgment on the last trial are contrary to both the law and the facts, and hence should not prevail. I shall, as briefly as I consistently can, state the reasons which have impelled me to arrive at a conclusion contrary to that reached by my Associate, Mr. Justice GIDEON.
The defendant insists that the district court committed prejudical error in setting aside the verdict in its favor which was returned at the close of the first trial, and asks that the first verdict be reinstated, and that judgment be entered upon the same. The court granted a new trial, for the reason that in its judgment it had erred in not submitting to the jury a certain issue respecting the condition of an angle cock. In granting the new trial, the court, upon that subject, said:
*21 “I think that the question of whether or not the injury and death of plaintiff’s intestate- was caused either wholly or in part by the condition of the angle cock ought to have been submitted to the jury.”
In granting the new trial upon that ground the court erred, for the reason that, even though the angle cock had been defective, yet there was no evidence whatever that such defect was the proximate cause of the accident, and this court has so held.
The next proposition is that the district court erred in refusing plaintiff’s request to instruct upon the question of contributory negligence. In my judgment there was not the slightest evidence upon which to base a finding of contributory negligence on the part of the deceased, and hence such a request was useless' and could not be the basis for a new trial.
It is next suggested that the court nevertheless did not err in granting a new trial, because, as stated in Mr. Justice GIDEON’S opinion, the district court in considering the motion for a new trial had the right to determine whether in its “judgment the jury had failed to give such weight to the testimony as it was entitled to receive.” Mr. Justice GIDEON, therefore, concludes that if the jury did not do so the court did not abuse its discretion in granting a new trial. That, in my judgment, is stating the right of trial courts to interfere with jury verdicts too broadly.
Our statute (Comp. Laws Utah 1917, § 6802), so far as material here, provides that when a case is tried to a jury:
“ * * * If it [tbe court] state tbe testimony of the case, it must inform tbe jury that they are the exclusive judges of all tbe questions of fact.”
That section is divided into six subdivisions, and, with some changes, was adopted from the Code of Civil Procedure of Nansas. It was incorporated into our Code of Civil Procedure in 1898, and has been in force ever since that time. The clause above quoted, however, is not copied from the Kansas Code, but was written into our Code, and, so far as the writer is aware, is not found in any other Code. It certainly is not in the California Code, and is not a part of the
This court, as a matter of course, takes judicial notice of the general practice and procedure that prevails in the courts of this jurisdiction. Pursuant to the foregoing statutory provisions the courts of this state, in all cases tried to juries which have come to this court in the past 20 years, have uniformly charged the juries that they are the exclusive judges of the weight of the evidence and the credibility of the witnesses. Such an instruction was given to the jury in this case. The foregoing practice has therefore been ñrmly established in this jurisdiction.
Now, I do not contend that the trial courts may not exercise a sound legal discretion in granting or denying new trials. Indeed, I contend that the trial courts should in all eases carefully scrutinize the evidence respecting every essential fact that must be established in case a motion for a new trial is made; and if, after doing so, the coui't is convinced that the evidence is insufficient — that is, that it is lacking in substance upon any material fact — the court should grant a new trial upon the ground of the insufficiency of the evidence to support the verdict, just as our statute providing for new trials contemplates. By insufficiency of the evidence, however, is not meant that the court may weigh the evidence for and against every essential fact, and, if in its judgment the weight is against the finding of the jury that it in'its discretion may either grant or deny a new trial. The question is not whether in the judgment of the trial court the finding of the jury is supported by the greater weight of the evidence,, but the question is, Is the evidence lacking in substance upon any essential fact? • That, in my judgment, is the intent and purpose of our statute. If there is substantial evidence upon every essential fact, then the weight and credibility that shall be given to it is the exclusive province of the jury to determine. This, in my judgment, is so because the jurors may have interpreted the evidence differently from the court. They may also have observed some things during
By what I have said I do not mean that a court errs in setting aside a verdict which is clearly and manifestly against the weight of the evidence, but that more properly falls under the head of miscarriage of justice. The trial court, no doubt, may also grant a new trial if it is convinced that the jury has misconceived or misapplied the law, as stated in the instructions, to the facts, or in-case they have failed to follow the instructions, or have entirely disregarded the evidence upon some material subject or question, or if the court is convinced that upon the whole case the verdict would result in a miscarriage of justice. In all of these instances the trial courts must exercise a sound legal discretion, but, in my judgment, they may not, as is broadly laid down in the prevailing opinion, grant new trials because in their judgment the juries have not given such weight to the evidence, or to some part thereof, as the trial courts think it should have received.
I am not unmindful of the fact that numerous cases can be cited where it is broadly stated that the trial court may exercise its discretion in granting a new trial upon the ground that the verdict is against the weight of the evidence; in other words, that the trial court may pass upon the weight of the evidence. When the cases are critically examined, however, it will be found that only a few go to that extent, although many eases are cited as having that effect. But, as I have pointed out, our statute is sui generis upon that subject, and should be given effect. -1 am constrained, therefore, to withhold my assent to the proposition stated in the prevailing opinion.
While, in my judgment, the district court erred in granting a new trial upon the specific grounds stated, yet the de
This brings me to the proceedings had on the second trial. The plaintiff filed an amended complaint upon which that trial was had. The complaint covers more than 12 pages of the printed record, and is therefore too long for insertion here, or to make even a condensed statement of the allegations therein contained. It must suffice to say that the complaint is sufficient both in form and substance. The defendant, in addition to denying the alleged negligence on its part, also set up contributory negligence and assumed risk.
I shall confine my statement to the evidence produced by plaintiff at the second trial, all of which is without conflict. From that evidence it was made to appear that on September 22, 1916, the date of the accident, the deceased was employed by the defendant as a rear brakeman upon a special freight train consisting of 32 ears of coal, one tool car, and four “outfit” cars; that on the evening of that day, between the hours of 9 and 10 o’clock, the train arrived at Bed Desert, a station of defendant’s railroad about 50 miles west of Rawlins, in the state of Wyoming, going eastward toward Rawlins; that the train crew consisted of the engineer fireman, conductor, head brakeman, and the deceased as rear brakeman; that upon arriving at Red Desert the train was stopped on the main line, and the caboose was detached therefrom for the purpose of “setting out” the four “outfit” cars which were immediately ahead of the caboose; that the tool car referred to was set out either at Red Desert or a station west of it, the evidence not being clear as to that; that after the caboose had been detached the train was moved forward on
The conductor, who was called as a witness for plaintiff, testified that the train was moved backward slowly and at about the speed that a man would walk if he were “walking leisurely;” that he was standing on the south side of the track about 10 or 12 car lengths — that is, between 400 and 500 feet — from the caboose where the deceased was standing on the south side of the track waiting for the rear end of the train to reach the caboose, which was about 1,200 feet from the engine; that when the rear end of the train was about to reach the caboose the deceased gave the usual stop signal, which the conductor relayed to the head brakeman, and which the latter gave to the engineer; that upon giving the stop signal the train moved backward very slowly and when the coupling with the caboose had been made the train stopped; that, while the night was clear — that is, cloudless — it was, nevertheless too dark for the conductor to see the deceased, who was at the side of the train at or near the caboose; he however, did see the light of the lantern carried by the deceased, which disappeared as soon as the train had stopped and the coupling had been effected; that when the light disappeared the conductor assumed that its disappearance was caused from the fact that the deceased had stepped onto the track between the rear ear of the train and the caboose for the purpose of coupling the air hose so as to connect the air with the caboose; that after the light had disappeared the conductor waited to receive the forward signal from the deceased, which he expected would be given as soon as the air hose was connected; that, not receiving such a signal for several minutes (the conductor is not clear as to the length of time), he walked back to the caboose, and upon arriving there found the deceased’s body lying across the south rail
The body of the deceased was lying “about 6 or 8 feet” east of the rear or west end of the rear coal car, and his lantern, with the light burning, was standing about “2 or 3 feet east of his body in the middle of the track,” under the ear. The conductor further testified that the only thing which was left undone which the deceased was required to do was the opening of the angle cock, so as to connect the air with the caboose. He also testified that, while he was standing opposite the train waiting for the deceased to connect the air hose, and to give the signal for the train to move forward, he did not notice any movement of the cars or the running out of the slack. Further, that the movement of the train was the usual and ordinary movement in making a switch such as was made, and that the appliances were all in good order and were working all right; that the angle cock worked all right when he opened it, as before stated.
The engineer was also called as a witness by the plaintiff, and he stated in detail how the train was being operated in switching the cars; that as soon as he had received the signal to stop the train, when the rear coal car had reached the caboose, he moved the train very slowly backwards, and when he felt that the train had been coupled to the caboose he at once set the independent brake on the engine, and, in accordance with what he said were the instructions, “always
The evidence is also to the effect that the play or slack between the cars was, if anything, greater than was the distance that the cars moved backwards, so that the rear end of the train might have moved backward without any movement on the part of the engine. It also was shown that within about 10 minutes after the train was moved from the body of the deceased his body was placed on a passenger train which passed at the time, and was removed from the scene of the accident; that the special freight train was then removed from the main line and placed upon the side track, where it remained until about 3 o’clock the next morning, when it was taken by a special train crew to Rawlins; that after arriving at Rawlins the next morning the rear brakeman of the special crew, in attempting to work the angle cock which was on the rear end of the coal car, and the one the conductor had opened the night before when the accident happened, found that it worked hard. He said:
“Why, I went to turn the angle cock; it was a little stiff, and had to pound it over with a hammer, and pounded it over with a hammer'and cut the air hose in by the caboose.”
He afterwards explained that the angle cock was one in general use, and that in order to turn the “handle” it had to be “lifted a little.” There was also evidence on the part of the defendant, which was not disputed, that proper inspection of the angle cock and appliances had been made, etc., and that they were all in good working order. This latter evidence is, however] not material.
The defendant assigns the court’s ruling as error and in its brief and argument insists that the ruling of the district court was prejudicial for the reasons before stated.
By, the first assignment referred to the defendant squarely raised the question as to whether there is any substantial evidence upon which to base a finding of negligence on the part of the defendant or of any of the train crew. Where that question is raised, as it is here, by a request to direct a verdict, then the question of whether there is any substantial evidence of negligence under the federal act is a question for the court, and will be reviewed by the Supreme Court of the United States. Chicago, R. I. & P. R. Co. v. Devine, 239 U. S. 52, 36 Sup. Ct. 27, 60 L. Ed. 140; 18 R. C. L. p. 866, § 328. This court is therefore bound to consider the question of whether there is any substantial evidence in this record authorizing a finding of negligence on the part of the defendant or of any of the train crew. If there is not, then the district court erred in refusing to direct a verdict. 18 R. C. L. p. 826, § 281. I am thus required to make at least a brief review of the evidence.
As before pointed out, in this case the evidence upon the question of negligence all comes from the plaintiff’s witnesses, and is without dispute. Plaintiff proved at the trial that the switching was done in the ordinary and usual way; that there
It is contended, however, on behalf of the plaintiff that to permit the slack to run out after the deceased had gone between the caboose and the coal ear to connect the air hose and to turn the angle cock constituted negligence; or, at least, was 'such an occurrence from which the jury could infer negligence. May the jury, however, infer negligence from the switching of cars which plaintiff’s own evidence shows was done in the usual and ordinary way? May they infer negligence from the mere fact that the cars, In accordance with the law of gravitation, slowly moved down grade until the slack had run out? How can a jury of laymen, without any experience in operating trains, legitimately arrive at such a
“The common experiences of mankind establish that a heavy freight train, this one having 32 cars, brought to a standstill upon a slight grade, will relax a trifle when the drawing power is released.”
No one can successfully controvert the foregoing statement. Nor can it be successfully disputed that cars will not move to some extent after a train has come to a sudden standstill in case the track inclines one way or the other, which is a very usual thing. How can such an occurrence, without more, constitute negligence in the operation of trains? There is therefore no substantial evidence of negligence in this case, and for that reason the court erred in not directing a verdict.
There is, however, still another reason why the court erred in refusing to direct a verdict. In view of the undisputed evidence the deceased in entering into the employment as brakeman assumed all the ordinary risks which were incident to that employment. The district court so charged the jury. In view that under the evidence the death of the deceased was not caused by reason of defendant’s failure to comply with any of the provisions of the federal act in providing the
In Taylor v. Rock Island, A. & L. R. Co., 121 La. 543, 46 South. 621, the rule respecting the assumption of the risk of moving cars is stated thus:
“Adjusting or taking up slack is a common and necessary incident to the stopping of all trains, and one the risk of which the hrakeman assumes when he undertakes to uncouple cars before the train is at rest.”
In Cincinnati, N. O. & T. P. Ry. Co. v. Evans, 129 Ky. 152, 110 S. W. 844, tbe rule is stated in tbe beadnote in tbe following words:
“When decedent became a railway hrakeman, he assumed all the risks of the employment as usually conducted, including the negligence of Ms fellow hrakemen,. and jerks of cars resulting from the taking up of the slack in the movement of cars made with ordinary care by the engineer.” (Italics mine.)
I bave italicized tbe seven words in tbe quotation for tbe purpose of directing tbe reader’s attention to tbe(fact that under the federal act tbe fellow-servant rule does not apply, and hence those seven words must be eliminated. Excepting the seven words, however, none of which has any bearing in this case, tbe law is correctly reflected in tbe statement.
To tbe same effect is tbe case of Briggs v. Union Pac. R. Co., 102 Kan. 441, 175 Pac. 105. In that case it was held that a fireman assumed the risk under the facts there stated. In that case, as in this, tbe jury found that the defendant was negligent, but tbe court held otherwise. In tbe course of tbe opinion it is said:
“The fireman had a right to assume that the engine would not he started until he was in the engine cab. It was started, however, without him. When he came out of the lunchroom the engine and a number of cars had already gone by, and the train was going forward. He was immediately and manifestly confronted with all the difficulties and dangers to be encountered in reaching his place on the engine. It would be fatuous to say he .was not aware of them, and it would he an impeachment of the mental capacity of*32 a competent man to say he did not appreciate them. * * * The whole situation created hy the engineer’s negligence lay before the open eyes of this experienced trainman the moment he stepped out of the lunchroom. He voluntarily chose his course, and voluntarily assumed the risk attending his choice.”
In the foregoing case the Supreme Court of Kansas, in concluding the opinion, points out that that case, like the one at bar, was based upon the federal act. . With regard to that the court said:
“The case being governed by federal law, the court has applied that law, as expounded by the Supreme Court of the United States.”
The judgment of the district court in entering judgment for the defendant notwithstanding the verdict of negligence by the jury was therefore affirmed. It should be remembered that in the foregoing case the assumption of risk was based upon the ground that the fireman was aware of and appreciated the danger, and therefore assumed the risk upon that ground.
In Pete v. N. O., T. & M. R. Co., 134 La. 608, 64 South. 485, it is held that a brakeman’s “going between'cars while they were in motion was uncalled for and was an unnecessary assumption by him of a known risk, ’ ’ for which he could not hold the master.
In L. & N. R. R. Co. v. Greenwell’s Adm’r, 144 Ky. 796, 139 S. W. 934, the rule is stated in the headnote thus:
“The ordinary jerking and bumping which always accompanies the switching of freight cars within the yards of the company does not, of itself, constitute negligence on the part of the company.
“Those who accept employment as switchmen and brakemen and whose duty requires them to be on and about the cars are fully, advised as to the risks incident to their employment, which they must assume if they expect to take part in that employment.”
In Stool v. So. Pac. Co., 88 Or. 350, 172 Pac. 101, the Supreme Court of Oregon states the rule thus:
“The general rule is that an employé of a railroad company assumes all the risks ordinarily incident to his employment, including those arising from the ordinary operation of trains upon the railroad.”
In that case the rule just stated was applied to a section man working on the track. If that rule applies to a section
In this connection it is important not to confuse contributory negligence with assumption of risk. That is sometimes done, and under certain circumstances is of no importance. In this case, however, the distinction is important. It has frequently been pointed out by the courts that assumed risk and contributory negligence may arise out of the same set of facts. In Wheeler v. C. & W. I. R. R. Co., 267 Ill. 306, 108 N. E. 330, it is said: “Assumed risk and contributory negligence” may both “arise under the facts of a case.” Many illustrations are found in the decided cases, to which it is not necessary to refer.
In view of the undisputed facts of this case it is very clear that the risk, if there was one, in passing between the caboose and the rear coal car before the slack had entirely run out was one which was incident to the employment, and hence was assumed by deceased. Moreover, in view of plaintiff’s ^evidence, this case is not one where it can be inferred that the movement of the train: or of the cars was caused by any act or omission of the engineer. The movement, what movement thei'e was, is accounted for by the declining grade of the track and the running out of the slack.
If it be assumed, however, that the angle cock was defective, still the plaintiff should not recover. It is elementary that in order to recover the burden was upon her to show that the defect in the angle cock was the proximate cause of the injury and death of the deceased. Here again there is nothing upon which an inference can be based that the defect, if any, in the angle cock was the proximate cause of the accident. The evidence is positive that the angle cock was in good condition and working all right immediately after the accident. True, there is evidence that it worked “hard,” or was “stiff,” the next morning after the train had been moved about 50 miles from where the angle cock had been last tried, and where it was found to be in good order. If the angle cock had not been tried and' had not been found to work by
But, as before stated, if there were such evidence, still the plaintiff should fail because there is not the slightest evidence that the defect, if any existed, was the proximate cause of the accident. There is not the slightest evidence that the deceased attempted to work the angle cock, or that he even touched it before the accident happened. Nor is there any fact from which an inference can be deduced that, if the deceased did touch or attempt to work the angle cock, that caused him to fall under the wheels of the car. The attempt to work the angle cock would not naturally result in his falling under the wheels. Then again there is no evidence whatever respecting the time when the angle cock became defective, if it were in fact defective. There is evidence, however, which is undisputed, that it had been inspected in proper time and had been found in good working order, and that it was one in ordinary use. There is therefore nothing upon which an inference can be based as to how long the defect existed, if a defect did exist. If, therefore, the angle cock is one of the appliances which comes within the federal act and hence had to be provided by the defendant at its peril, still the evidence is beyond question that the defendant had complied with the federal act in that regard. The defendant having once complied with the federal act by providing a proper angle cock, but which, in operating the train, became defective or out of order it nevertheless was entitled to a reasonable time within which to cure such defect. While the
I am of the opinion therefore that under the law applicable to such facts the judgment based on the erroneous verdict should be reversed and the cause remanded to the district court of Weber county, with directions to grant a new trial, with costs of this appeal taxed against respondent.