33 Utah 27 | Utah | 1907
A rehearing was granted in this case, and we have again given the questions involved careful consideration. While we are still of the opinion that the result announced in the decision heretofore filed is correct, and that the judgment must be reversed, we are convinced that the opinion, in some particulars, ought to he modified. In view of such fact, the case is decided, ruled, and controlled by this opinion only.
The action in question was brought to recover for personal injuries alleged to have been sustained by plaintiff at Williams, in the state of Montana, where she was at work for defendant as a cook in one of its outfit, or hotel, cars. The complaint alleges that plaintiff was the servant of defendant, and as such, was required to work and remain in its car as the same was situated oñ a. side track; that while working and remaining therein, the defendant, without notice or warning to plaintiff, negligently and suddenly ran one of its engines into said car, whereby plaintiff “suffered a violent blow upon the head cutting the scalp in four places, necessitating the cutting of all the hair from her head, and rendering plaintiff unconscious for several hours, back sprained and wrenched, so that the same is still sore and lame, arms bruised' and sprained, right limb injured and sprained, and internal injuries causing serious injuries to female organs; that by reason of said injuries the said plaintiff has suffered, and for all time will continue to suffer, great bodily pain and has been incapacitated, and for all time will be incapacitated from performing her daily work as a cook and housewife, and has been, and for all time will be, permanently crippled a.nd scarred.” The answer denies the allegations of negligence in the complaint, and affirmatively alleges contributory negligence on the part of the plaintiff. The answer further alleges that plaintiff was not a servant of the defendant; that she was'permitted to be upon the car in question solely because plaintiff and one William Liffon Pugmire re
It appears from the record that on July 19, 1905, at Poc-atello, Idaho, the William Liffon Pugmire referred to in defendant’s answer was employed by defendant company as manager of one of its outfit cars. At the time IVIr. Pugmire was employed, he and plaintiff signed a release, of which the following is a copy: “Whereas, William Liffon Pug-mire is employed by the Oregon Short Line Railroad Company as manager Outfit 16 on its outfit cars and lives on and about said cars, and has with him Christine Pug-mire his wife; and whereas, they agree to waive and release the said railroad company from any and all rights they might otherwise have to sue and recover for damages on account of any injury to the said William Pugmire and Christine Pugmire during the continuance of such employment and residence on said cars: Now, therefore, in consideration of the permission to said William Liffon Pugmire and Christine Pugmire to be upon said cars as aforesaid, we do hereby release and forever discharge the said railroad company and its successors from any and all claim and liability for damages resulting from injuries which may be received by the said William Liffon Pugmire and Christine Pugmire while in and about the cars, trains and railroad of said company, whether received through accident or carelessness on their own part, or on the part of any employee or person, or otherwise ; this release being intended to embrace and include all claims for loss of service and for disability, pain or suffering resulting directly or indirectly from any kind of injury or death.”
In the evening of the same day on which he was employed, Pugmire, accompanied by his wife, the plaintiff, went with
The case was tried to a jury, and a verdict of $3,500 re^ turned in favor of plaintiff. To reverse the judgment entered on the verdict, the defendant has appealed to this- court. After the plaintiff had introduced her evidence in chief anu rested her case, the defendant moved the court for a judgment of nonsuit upon the following grounds: (1) That plain
The record shows that, when Pugmire applied to defendant company for employent, O. D. Gefeke, who was, at the time; inspector of outfit cars for defendant, and who also had charge of the employment of cooks and managers on such cars, inquired of Pugmire whether he had a wife, and if he wanted her to be on the cars with him. Pugmire answered that he had brought his wife (plaintiff herein) with him, and stated that he wanted her to accompany him, at the same time pointing her out to Gefeke. Gefeke- then stated to Pugmire that if he wanted his wife to go along' they would have to sign the release hereinbefore referred to. Gefeke was called as a witness by defendant, and testified, in part, as follows: “The duties of an outfit manager are: To cook, prepare meals, order supplies, etc. As a rule we inquired whether the particular individual happened to be a cook or not. If he could not cook, then he had to- furnish the cook. Where his wife accompanied him, it was taken for granted that she could cook and would as'sist in the work; and that was why the wife was permitted to go. When a man had his wife with him, if he could not cook, and she did the. cooking, it was all right with me, and with the Short Line Company. We would not have employed Pugmire if he had not provided the cooking in some way.” Plaintiff testified that from the time she arrived at Williams on the outfit cars in question (July 19, 1905) until July 22d, the day of the accident, she “cooked the food for the men of the Oregon Short Line (defendant)”; that those men took their meals at the car; and that she “did the cooking, dish washing, and straightening up around there in general”; that on two occasions the foreman of this crew of men gave her orders
It thus clearly appears — in fact, there is no conflict in the evidence on this point — that plaintiff cooked for the employees of the 'defendant, washed the dishes, cleaned up, and took care of the commissary and dining car, and in so doing acted as a substitute for Pugmire, and that, too, with the knowledge and approval of the defendant, and that it received the benefit of her labor. The plaintiff w'as not a trespasser or mere licensee, but was rightfully in the car doing work for the defendant, and, as stated, with its knowledge and acquiescence. And, furthermore, the evidence introduced by defendant shows that one of the conditions upon which it employed P'ugmire w'as that, “if he could not cook, then he had to furnish a cook.” The representative of the company whose duty it was to employ managers for defendant’s outfit cars, and who employed Pugmire, testified: “We would not have employed Pugmire if he had not provided the cooking in some way.” In other words, under the terms of his employment, Pugmire was obliged to either do the cooking himself or get some one to- do it for him. Whether the plaintiff was in the direct employment of defendant or indirectly as the assistant of Pugmire can have no bearing on the question, because, in either event, according to the great weight of authority, the relation of master and servant existed between plaintiff and defendant within the meaning of the rule requiring a master to exercise ordinary care to prevent injury to his employees. Therefore, under the facts and circumstances disclosed by the record in this case, defendant owed plaintiff the same duty for her safety that it owed to Pugmire and its other employees. And this, too, notwithstanding the fact that plaintiff was not enitled to pay from defendant for her services. (Wilson v. Sioux Con. Min. Co., 16 Utah 392, 52 Pac. 626; Ringue v. Oregon Coal Co., 44 Or. 401, 15 Pac. 703; Tennessee Coal Co. v. Hayes, 97 Ala. 201, 12 South. 98; Rummell Ar. v. Dilworth, 111 Pa. 343, 2 Atl. 355, 363; Haluptzok v. Railway Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739;
The contention that there was no evidence introduced to show that the accident in which plaintiff received the injuries complained of was due to the negligence of the defendant company is not borne out by the record. The undisputed evidence shows that the outfit cars in which plaintiff was injured were fitted up and placed and stationed by defendant on one of its side tracks for the use and occupation of plain tiff and certain employees ,of the company. And plaintiff had a right to assume that defendant would exercise ordinary and reasonable care to prevent these cars from being run into by its switch engines and passing trains. The record, as it now stands, shows that an engine propelled on defendant’s railroad tracks was, without warning or signal," run onto this side track and into the outfit cars. It also' appears from the undisputed evidence that, when plaintiff discovered that the engine mentioned was about to collide with the outfit cars, she immediately endeavored to leave the car, but was unable to do so before the collision. Under these facts and circumstances, the question of neligence on the part of the defendant company' and of contributory negligence on the part of the plaintiff were questions of fact for the jury to determine; and the jury having, under proper instillations by the court, found against defendant on these issues, the findings are final and cannot be disturbed by this court
The defendant requested the court to instruct the jury that, in case they found that the release hereinbefore mentioned was “entered into without fraud or deceit on the part of the defendant, then the plaintiff would be bound by the terms of said release and would not be entitled to recover in this action,” etc. The refusal of the court to so instruct the jury is now assigned as error. We think this assignment is without merit. The law is well settled that a master can-. not, by contract in advance, absolve himself from liability
“The policy of our law being well settled, it only remains for us to •inquire whether railroad companies may ignore or contravene that policy by private compact with their employees, stipulating that they Shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employees simply, but has its reason and foundation in a public necessity and policy which should not be asked to yield or surrender to mere private interests and agreements.”
The same question was before this court in the case of Stone’s Adm’r v. Union Pac. Rd. Co., 89 Pac. 715, and in an opinion written by Mr. Justice Straup it is said:
“The decided weight of authority in this country sustains the proposition that a contract whereby an employee agrees in advance to relieve his employer from liability for injuries resulting from the latter’s negligence, or that of his employees, when he is, by the law of the jurisdiction, responsible for their negligence, is void as against public policy.”
Numerous authorities are cited in the opinion, which declare the same doctrine.
During the progress of the trial the plaintiff was asked, upon cross-examination, if she and Pugmire were married. Objection was made to this question and others of like character on the ground that they were immaterial and not cross-examination. The objections were sustained, and exceptions were noted by defendant. The rulings of the court in sustaining the objections are assigned as error. We think the court did right in sustaining the objections. The defendant’s liability or nonliability in no way depended upon the marital relationship existing between plaintiff and Pugmire1, but depended upon the question of defendant’s negligence and upon the relationship existing between it and plaintiff at the time the accident occurred. If Pugmire were suing the company
The next error assigned relates to the admission of evidence, over defendant’s objection, of the diseased condition of plaintiff’s eyes since the collision. It is contended that since plaintiff enumerated in her complaint the injuries for which she claimed damages, and made no averment of any injury to her eyes, it was error for the court to admit evidence of their diseased condition. The injuries alleged in the complaint are: (3) A violent blow upon the head cutting the scalp in four places; (2) back sprained and wrenched, so that the same is still sore and lame; (3) arms bruised and sprained; (4) right limb injured and sprained; and (5) internal injuries causing serious injury to the female organs. And the result or consequences of these injuries, as alleged in the complaint, are: (1) That the plaintiff has suffered, and for all time will suffer, great bodily and mental pain and anguish; (2) that she has been, and for all times will be, incapacitated from performing her daily work as a cook and housewife; and (3) plaintiff has been, and for all time will be, permanently crippled and scarred. Here we have each specific, injury, as well as the consequences flowing therefrom, upon which plaintiff relies for recovery, set out in detail and minutely described. It will be noticed that no mention is made of any injury to plaintiff’s eyes; nor is there any allegation in the complaint from which it could be reasonably inferred that her eyes were injured at the time the collision in question occurred, or that they afterwards, as a result of the injuries received, became diseased and the sight impaired. When the evidence on this point was offered, and objections made thereto, counsel for plaintiff stated to the trial court that they did not claim that there “was any direct injury to her eyes;” and, further, that “the disease has developed even since this suit was commenced with more or less rapidity.” If plaintiff, at the time she commenced her action, was not aware that she had received injuries which later on would produce a disease to her eyes, how can it be said
“The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the. real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting and defeating it if possible at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted, to state their demands orally before the court at the time of the trial. The requirement therefore that the cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading.”
Tested by this rule, which is founded upon the fundamental principles of written pleadings in .civil actions, the complaint, as framed, was no notice to the defendant that damage for injuries to plaintiff’s eyes would or might be claimed. Therefore defendant was not bound to anticipate and be prepared to meet a claim of such a character. We do not wish to be understood as holding that in personal injury cases the plaintiff must in his complaint -describe in detail every bruise, sprain, and wound he may have suffered because of the wrongful act complained of in order to introduce proof thereof. Nor do we mean to. say that the plaintiff cannot, under the general allegations of his complaint, introduce proof of all damages that usually and ordinarily result from the wrongful act alleged, or from the nature and kind of injuries
Counsel for respondent, in support of their contention that the evidence was admissible, cite and rely on the case of Croco v. O. S. L. R. Co., 18 Utah 311, 54 Pac. 985, 44 L. R. A. 285. In that case, which was an action for personal injuries, the plaintiff was permitted to testify that his memory was not so good after the accident as it was before, and that he could not see out of his right eye. On appeal, this court held that, under the allegations of the complaint, it was not error for the trial court to admit evidence of this character. By an examination of the record in that case, it will be seen that the allegations of the complaint were general in character, and not specific, as in this ease. The complaint in that
It follows from wbat we have said tbat tbe court erred in admitting tbe testimony in question, and, .as it could not bave been other than prejudicial to tbe interests of appellant, tbe case must be reversed. It is so ordered. Tbe trial court is directed to permit tbe parties to amend their pleadings should they so desire. Costs of this appeal to be taxed against respondent.