170 P. 80 | Utah | 1917
The plaintiff sued, on behalf of herself and infant child, to recover damages caused by the death of her husband. The action is predicated upon the federal Employers’ Liability Act of April 22, 1908.
The allegations of negligence, in substance are that the defendant constructed and maintained a side track at a station near Tecoma on its line of railroad in the state of Nevada; that defendant’s negligence consisted in constructing and maintaining said side track so near to the main line of its railroad, and in placing a large freight car thereon, that the deceased, who was employed as a brakeman on one of defendant’s freight trains, and while, in the discharge of his duties on said train, on the 9th day of December, 1915, came in contact with said ear on said side track while said train was passing the same, and was instantly killed. The defendant, while admitting the construction and maintainanee of said side track and placing the freight car thereon alleged, nevertheless denied all acts of negligence, and averred in its answer that the deceased came to his death by reason of his own carelessness and negligence, and also averred that he had assumed the risk of injury, fully stating the facts in that regard.
There is not the slightest dispute respecting the facts, which, briefly stated, are as follows: -
Tecoma is the name of a station and also the name of a small town on defendant’s line of railroad in the state of Nevada. Another station on its line is called Montello, which is about 4.9 miles west of Tecoma. Tecoma station is about three-fourths of a mile west of the town.of Tecoma. On the morning of the 9th day of December, 1915, the deceased was employed as head brakeman on a fast freight composed of
The track marked “M. L.” is the main line on which the freight train on which the deceased was employed was running at the time. The railroad at the point in question, when looking east, runs in a northeasterly direction. The track marked “S. T.” is the side track in question, and the parallelogram marked “C” on the plat represents the large steel freight car which was standing on the side track and with which, it is contended, the deceased came in contact. The
It appears that the body had slid from the point “X” to the point “B,” which was shown to be a distance of approximately twenty feet, more or less.
The broken line running parallel with the main line represents the distance the freight cars on the freight train projected over the rail. The distance between the center of the top of the south rail on the main line and the center of the top of the north rail on the side track, as testified to by one of plaintiff's witnesses, is seven feet five inches, or eighty-nine inches. 'That left a space of about thirty inches between the cars on the freight train and the car standing on the side track, perhaps a little less.
It is the theory of plaintiff’s counsel that the deceased was looking at the wheels on the rear end of the head ear in the freight train to see whether the journals were heating; that in doing so he was standing in the “stirrup” or “lower step” of the car holding on to what is called the “grab iron” on the side, of the car; that he was leaning outward from the car, and while in that position his body came in contact with the car standing on the side track, and that he was killed by the impact.
Recurríng now to the testimony of the witnesses, one C. F. Lee, who testified for the plaintiff, said that from a half to three quarters of an hour after the freight train had passed the town of Tecoma he was informed by Mr. Purdy that there was a man lying at the point “ B ” indicated on the plat; that he and Mr. Purdy immediately went to the place, and found that the man was the deceased and that he was dead; that they made an examination, and found where the deceased had first struck the ground. In that connection one of the witnesses, in answer to the question, “Just state what you found
The point "X” on the plat is the point the witness referred to as the "car door,” and the "trail” referred to by him is indicated by the dotted line on the plat.
When the body of the deceased was first discovered, the two witnesses, Mr. Lee and Mr. Purdy, made an examination of the ear standing on the sidetrack to determine whether the deceased had come in contact therewith, and, if so, at what point. They discovered nothing, but did not make as thorough examination as was done a little later.
Mr. Lee or Mr. Purdy immediately notified the coroner of the county, who lived at Montello station, about 4.9 miles west of Tecoma. The coroner, a Mr. Thurston, and the deputy sheriff, Mr. Zundel, arrived at Tecoma in an automobile, as they say, between ten-thirty and eleven o’clock a. m.
All the witnesses testified that the morning in question was a cold, frosty morning. Some characterized it as cold and frosty. The witness Lee, however, said that it was not "freezing when he was at the ear,” meaning when he and Purdy were first there. There had been a fog earlier in the morning, but the witnesses said the fog had disappeared when, the body of the deceased was found. Indeed, the testimony is to the effect that the fog had passed away at Tecoma when the freight train passed through the town.
Immediately after Mr. Thurston, the coroner, had arrived, he called several men who lived at ‘Tecoma-, as jurors, and proceeded to examine the body of the deceased and the conditions surrounding it. A number of witnesses testified, and their testimony is to the effect that the body was lying as before indicated; that the back of his skull was ‘ ‘ crushed to a pulp ’ ’ from the crown of the head down to the base of the skull;
The doctor called by the plaintiff testified that the skull was probably crushed in by a blow from some blunt instrument or substance. It was also made to appear that the side track was constructed about twenty-seven years prior to the accident, and that it was maintained for that length of time at the place it was at the time of the accident; that records were kept by the defendant of all accidents since the year 1901, and that there was no record of any accident occurring similar to the one in question, or any other, at the side track in question during that period of time.
The plaintiff also produced a number of men who had been employed in the operation of trains in different parts of the country, who testified that it was customary and usual for trainmen to go down the side of cars when in motion to keep a “lookout” for hot boxes. There is other evidence, but, in our judgment, the foregoing fully and fairly reflects the record.
Upon the foregoing facts the defendant requested the district court to instruct the jury to return a verdict in its favor upon substantially the following grounds: (1) Because no negligence was shown on the part of the defendant; (2) that the cause of the death of the deceased is left to mere conjecture;. and (3) that the deceased assumed the risk as a matter of law. The court refused to so instruct the jury, but submitted the case to them upon the evidence. The jury returned a verdict in favor of the plaintiff, upon which the court directed judgment to be entered, from which the defendant appeals.
A number of errors are assigned.
In view of the facts and circumstances, the evidence respecting defendant’s negligence is quite meager. Assuming, how
“The evidence must, however, do more than merely raise a conjecture or show a probability as to the cause of the injury, and no recovery can be had if the evidence leaves it to conjecture which of two probable causes resulted in the injury, where defendant was liable for only one of them.”
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. Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; James v. Robertson, 39 Utah, 414, 113 Pac. 1068. If, in view of the whole evidence, it is just as probable that the deceased fell from the moving train, and that the back of his head
"Where the evidence of negligence is entirely inferential, and the testimony for the defendant is clear and undisputed to the effect that there was no negligence, the plaintiff’s ease is overcome as a matter of law, and it becomes the duty of the judge to take the case from.the jury.”
The rule is applied in Christensen v. Railroad, 35 Utah, 137, 99 Pac. 676, 20 L. R. A. (N. S.) 255, 18 Ann. Cas. 1159, and in Richards v. Railroad Co., 41 Utah, 99, 123 Pac. 933. It must not be assumed, however, that the rule thus stated can be given general application. Indeed, the rule can rarely be applied, since the evidence generally is such that it is the exclusive province of the jury to draw the inferences there
“When an injury may have come from either one of two causes, either of which may have been the sole proximate cause, it devolves on the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause. ’ ’
Numerous other eases could be cited to the same effect, but it is not necessary to do that. It is contended, however, that the case of Lewis v. Rio Grande Western Ry. Co., 40 Utah, 483, 123 Pac. 97, is decisive of this case. We are unable to concur in that view. In that case it was clearly established
Again, plaintiff proved by competent evidence that the deceased was pursuing the usual method in keeping a “lookout” for the expected hot box. This evidence was intended, no doubt, to show that the deceased was not guilty of contributory negligence. If, therefore, he was negligent, it was not because he got down on the side of the car, but because of some other act of carelessness, such as leaning out too far from the moving car. The presumption, however, is that he was not negligent in that respect any more than in any other; and hence it cannot be presumed, without some evidence, either direct or inferential, that he exposed himself to unnecessary dangers.
It is earnestly insisted, however, that we must take judicial notice of the laws and forces of nature, and hence that it is a physical fact that frost on windows and other substances is replaced in case it is disturbed. The familiar experience with windows in dwelling houses and in railroad cars is referred to. The phenomenon alluded to is, however,
We desire to add, before leaving this subject, that although it were assumed that the deceased came in contact with the standing car, yet that would not necessarily establish the proximate cause of his death. Suppose he had come in contact with the car after he had lost his hold on the
The Lewis Case, as well as many other cases decided by this court, conclusively shows that, if there is any substantial' evidence in support of the verdict, this court will not invade the province of the jury and pass on questions of fact. Where, however, as here, the verdict rests on mere conjecture,
One or two of the other assignments may be attributed to the fact that the district court refused to instruct the jury to return a verdict for the defendant as requested, and for that reason need no special consideration.
For the reasons hereinbefore stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake County, with directions to grant a new trial. Appellant to recover costs on appeal.
James v. Robertson, 39 Utah 414, 113 Pac. 1068.