107 P. 241 | Utah | 1910
This is an action brought to recover damages for alleged personal injuries.
The plaintiff, who was an employe of the defendant, was engaged, with others, in loading steel rails on flat cars. While loading a rail it slipped off a car and struck and injured him. The accident occurred in Colorado. The plaintiff alleged that the rails were improperly and negligently piled on the car; that the defendant failed to provide braces on the side of the car; that the foreman of the defendant in charge of the work negligently ordered the plaintiff and others to lift a crooked rail from a ditch and throw it on the car; and that, by reason of conditions occasioned from the manner in which the rails were piled, and the absence of braces, a rail which was thrown on the car slipped off and struck the plaintiff, who, because of a ditch and of a space of
Tbe material facts are: Tbe defendant, near Ruby, in Colorado, rebuilt its tract by removing ¡old rails and replacing them with new ones. Tbe old' rails, when they were removed, were strung along tbe track. At the time in question the defendant was engaged in loading the old rails on three flat cars pushed along the tract by an engine operated by a train crew. Two gangs of men, each consisting of about fourteen men, were engaged in loading the rails, one on each side of the car. The plaintiff and tbe other workmen with him were Greeks. The work was in charge of, and was directed' by, a boss or foreman. The gang of fourteen men of which plaintiff was one, with their bands, lifted tbe rails, one at a time, weighing 650 pounds, and threw them on tbe cars. Two men on tbe car with bars placed the rails in position lengthwise the car after they had been thrown on. Other men picked up angle bars and other material which also were thrown on tbe cars. Tbe foreman gave bis orders and directions to an interpreter on tbe car, who repeated them to the men loading the rails. The rails were strung along tbe track about thirty .feet apart. When tbe cars were moved to a place where the rails were lying, the men took hold of one of them, and upon a signal given by one of tbe men, it was raised to tbe desired position, and then upon
The manner in which they were thus thrown on the oar is best told in the language of the interpreter, who was a witness, and who testified, in behalf of plaintiff. The man-terial parts of his testimony on this point, as they appear in the printed abstract of the record, are: “I saw the first curved rail thrown up1 from his (plaintiff’s) side. It hit against the side of the straight rails, and then slid down onto the vacant space on the floor, which was about a foot and a half in width. The second curved rail also hit on the side of the straight rails and slid down. The third curved rail came up just the same as the other two, and slid down on top of the other two. It slid down from the straight rails onto the curved rails .and stayed there. There were two men on top of the car at each end who had forks, and, if the rail didn’t lie good, they would turn it. These men twisted that third rail and put it with the ball up on top of the two curved rails lying on the floor of the car. I saw Mike (plaintiff) and the men with him pick up the fourth curved rail • down in this ditch. The top of the flat car stood about two feet higher than his head. The last rail thrown was a crooked rail, the same as the other three. I saw the rail land on the
The plaintiff testified: That he had been working for the defendant about sixteen or seventeen days “changing rails,” but had never loaded rails before the day he was injured. That the rail which slipped off the car and injured him was thrown on evenly. That at places where the ground was about level with the ties he could plainly see the rails on the cars after they were thrown on, and that the top of the platform of the car was about eight inches below his chin, and that in throwing the rails on the car he took a good look at them. “I saw they were piled on the top of the car. I could see that. When there was a straight track, I could see that,” but that in loading the crooked rails he “was not able to see the top of the car, and I did not know how those three (crooked) rails already upon the car were piled,” because of the ditch and the car being about two feet above his head. That “we were going to take” the last rail thrown on the oar “to the other side because it was easier to throw
It is first urged by the appellant that the court erred in giving paragraph thirteen of the charge. The question as to the correctness of that charge involves a construction of the Colorado statute. We find it unnecessary to express an opinion on that subject. Even though it should be held that the trial court in that paragraph gave the statute referred to the proper construction, and correctly ruled that under such statute the giving of a written notice to the defendant by the plaintiff was not essential to render the defendant liable for the negligence of a mere fellow servant with the plaintiff, yet we are also of the opinion that the judgment of the court below must be reversed and set aside because of the views entertained by us on other assignments. We think on the evidence adduced it conclusively appears that the plaintiff assumed the risk, and upon that ground, if
We think that the verdict in other particulars was also clearly against the charge, and was not supported by the evidence. In paragraph thirteen of the charge the court instructed the jury that the defendant was responsible for the negligence of any agent, servant, or employee of the defendant causing the injury to the same extent and in the same 'manner as if the cai'elessness or negligence causing the injury had been that of the defendant. But in paragraph twenty-three of the charge the jury were instructed that if the acts of negligence relied on for recovery “were due solely to the fault of the foreman in charge of the work,” whose principal duty “was that of superintendence,” then no recovery could be had. Whatever might be said in support of the view that the two charges are in conflict, and that the first is right and the second wrong, and that the wrong instruction was induced by the defendant’s request and was error in its favor, nevertheless it clearly appears that the court in most positive terms charged the jury that the negligence of the defendant’s foreman in charge of the work was “a complete bar to any recovery in this ease.” If the jury could properly have rendered a verdict for the plaintiff by following either charge, then the defendant, whose request induced the conflict and caused the error in its favor, could not complain of the conflict; for, on well-
Even though the verdict as rendered was wholly based on the alleged negligence in failing to provide braces on the car, still the verdict, in view of the charge, cannot be upheld. The court submitted the ease to the jury entirely on the theory that the alleged commission and omission of acts were servant’s not master’s acts.- True the court stated to the jury that, under the. Colorado statute, the employer was liable for his own negligence, and that it was alleged in the complaint that the defendant negligently failed to provide braces; but nowhere in the charge were the jury instructed that a verdict could be rendered against the defendant on the theory that the failure to provide braces or to place them on the car was an omission of master’s duties. We do not say that under the evidence adduced the failure to places the braces on the car was an om,mission of master’s duties. ■ What we do say is that the question of the employer’s negligence was not submitted to the jury, and for that reason the verdict which was rendered by them cannot be supported on any such theory. To the contrary, the case
We are also of the opinion that the trial court erred in charging the jury on the issues. The court charged them that “the amended complaint sets forth what the plaintiff claims with reference to the controversy, and the amended answer sets forth the defendant’s version thereof. Both these are made a part of these instructions, and you are to refer to them for a particular statement in detail as to what each party alleges with reference to the controversy in question.” Following this, the court, after stating in “general terms” the substance of the material allegations of the complaint, and the denials and averments contained in the answer, then also charged the jury: “This brief description of the general nature of the cause of action alleged and the defenses set up thereto is not intended as a substitute for the statements contained in the complaint and answer, nor to relieve you of the necessity of consulting the complaint and answer for your guidance in determining the particular matters alleged as a cause of action or by way of defense.” Prom an inspection of the charge, it does not appear that the amended complaint and amended answer are attached to the charge, nor does the charge itself contain copies of them. But from the language of the court that they were made a part of the charge, and that the jury were required to refer to them to ascertain what was claimed by each party, we must presume, in the absence of anything shown to the contrary, that the court did what is implied by the language employed, and that the amended complaint and amended answer were attached to the charge or that they or copies thereof, were otherwise given the jury to consult and' to
The charge involves two erroneous statements, one wbicb necessarily implies that the jury had the right to. take the pleadings with them to the jury room, and the other that it was their duty to consult them and determine for themselves “the particular matters alleged as a cause of action or by way of defense,” and to refer to them to ascertain the “controversy in question.” It is the duty of the court to construe pleadings and to charge the jury on
For the reasons heretofore given, tbe judgment of tbe court below is reversed, and tbe case remanded for a new trial. Tbe appellant filed a printed brief consisting of 370 pages, including tbe covers. Our rules provide that tbe expense of printing abstracts and briefs not to exceed seventy-five cents for each page may be taxed' as other costs. If an expense of printing the brief at seventy-five cents a page should be allowed to be taxed as costs, such costs alone would
Tbe appellant is given all other taxable costs.