In September, 1890, John O’Brien, the husband of the defendant in error, was in the employ of the Union Pacific Railway Company as a locomotive engineer, running an engine upon the South Park Division of the company’s line. By a derailment of his engine on the 4th day of September, 1890, the said John O’Brien was killed, and the present action was brought by his wife to recover damages therefor.
The evidence shows that the accident occurred about 1 o’clock in the morning of the day named, at a place known as “Platte Canyon,” the deceased being in charge of an engine which was propelling a train of freight-cars, some 23 in number; that the line of railway is built along the South Platte river, and of necessity there are numerous cuts thereon, caused by the intersection of the line with the spurs projecting from the high lands along which the line is built; that the engine was derailed by reason of sand aud gravel which had been washed upon the track to the depth ©f some (5 inches, and to a width of about 15 teet; that this deposit of sand and gravel was in a cut, the river bank of which was 6 or <8 feet high, the other bank being much higher, and sloping up the side of the hill or mountain; that on the hill-side of the cut there was a gulley running bade for some distance, which in times of rain would bring down sand and other material; that there was no opening or culvert under the railway track, through which the water and the material brought down by it could escape; that there was along-side the road-bed a small gutter, but, if the water coming down was greater in quantity than this ditch or gutter would carry away, then the surplus would run over and upon the track and rails of the railway; that during the evening preceding the accident rain had fallen, and the water, rushing down the gully named, had carried the sand and gravel upon the track to the
'The first error assigned is based upon the action of the court in sustaining an objection to a question asked by the plaintiff in error in cross-examination of a witness, (William Hall,) who testified that he was a locomotive engineer, and was well acquainted with the line of railway upon which the accident happened; that there are many cuts upon the line; that in August and September rains were usually frequent, and that in rainy weather, on account of the steepness of the mountains, more or less sand would be deposited on the track. Thereupon, counsel for the company asked the question, “Are the engineers all aware of that fact?” which was objected to, and the objection was sustained. It is perfect]}1- clear, from the context, that the purpose of this question was to get the witness to testify to a matter purely of inference from the facts he had previously stated; that is, he had testified that, owing to the surroundings of the railway line, in rainy weather more or less sand would be deposited at various. points along the line, and the question objected to was asked with the view of having the witness draw the inference that the frequency of the deposits would necessarily' bring knowledge of the fact to all the engineers running on the line. The facts having been fully put in evidence', it was for the jury to determine whether the facts proven would justify inference of knowledge on part of all the engineers; and it was not error, therefore, to sustain the objection to the question proposed.
■ The second error relied on arises on the refusal of the court to permit the same witness, after testifying to facts tending to show the need of a culvert at the cut, where the accident happened, and that in his judgment a culvert would add to 'the safety of the road, to answer the question: “You said you thought the culvert would make it much safer; but is not that cut constructed there and the water run out of it exactly as others are ordinarily constructed on roads running through such places?” It is argued on behalf of plaintiff in error that if the company could show that this cut was constructed as cuts in similar places on roads running through a region of like character, it would be evidence tending to show that it had used ordinary care in the construction of this cut. If a bridge upon a line of railway breaks down, the company may show that the bridge is of an improved make or pattern, and is in common use upon other lines of railway, as eyidence tending to show that the company was not in fault in using that make of bridge. If the issue is whether the company uses proper precautions to prevent the escape of sparks from its locomotives, it may show that the same are equipped with the appliances in common use upon other roads. If the charge of
It cannot be claimed that cuts upon railways are made according to a certain recognized pattern. The necessity of a culvert or water outlet in a cut depends upon the surroundings, in which no two are exactly alike. We know from our common knowledge that in many cuts there arc to be found culverts, and in others there are none. It would have been of no aid to the jury to have proved that in many cuts no culverts were used, without further showing that the surroundings thereof were substantially similar to that where the accident happened; and this would have required an examination into a number of collateral facts, that would have led away' the jury from the issues on trial before them. It is said that the question as put to the witness met this difficulty, in that it asked whether the cut was not the same as the “cuts ordinarily constructed oil roads running through such places.” This would necessitate one of two results. The witness must, in his own mind, determine whether the places referred to were in fact similar to the one where the accident happened, and the jury must be satisfied to take the opinion of the witness on the fact of the similarity of the respective cuts and their surroundings, or else the witness must, describe in detail all the cuts he knew of “running through such places,” which could only result in utterly befogging the jury; because, if that line of inquiry should be opened to the one party, the other most be permitted to show the nature of tiie cuts in which culverts are found, and also to introduce evidence showing the actual nature and surroundings of the cuts which might be described by the witness.
Under all the circumstances, and in view of the tact that the contention of the plaintiff was tliat the making of an outlet for the water was demanded in this particular cut, by reason of the track crossing a gulch or natural water-way, and not simply because it passed through a cut, which fact is not included in the question asked, and for the reason that if that line of inquiry was entered upon, there was danger of distracting the jury by leading them off upon collateral matters, we cannot hold that it was error to exclude the question. 1
The third assignment of errors is that the court erred in permitting leading questions to he put to the witness O'Brien. The defendant had called as a witness George Warnick, who instilled to matters tending to show that the deceased had not kept a vigilant watch for obstructions on the track, and on cross-examination he was asked whether, shortly after the accident, he did not, in reply to questions put to him by the witness O’Brien, state that neither he nor the engineer were to blame for
It is further assigned as error that the court refused to give the instructions asked by defendant, which were four in number, and read as follows:
“The court is asked to instruct the jury that the burden of proof is upon the plaintiff to show that the accident occurred by reason of the negligence of the defendant, and that the plaintiff was in the exercise of due care at the time of the accident, and that due care in such a case required of the deceased that he be vigilant and watchful to avoid such danger as his experience of the road must have made him aware he must expect in such places as the place where the accident occurred, and under the circumstances detailed by the witnesses, to-wit, at a time when heavy rains had been met with, and that there has been offered no evidence whatever upon that point by the plaintiff, not even a reputation for care, but there has been evidence offered by the defendant that he was not in the exercise of due care; nor has there been any evidence offered as to whether, if the sand had been discovered at the time it might have been discovered, he could or could not have applied the air-brake in time to prevent the accident.”
“ The court is asked to instruct the jury that a. party taking employment as an engineer in running a locomotive assumes the risks that are incident to the employment, and to the running of locomotives over the roads operated by his employer; and if the jury believe that the country through which this road ran and its location was such that sand was frequently deposited on the track, then the deposit of sand on the track when heavy rains occurred must be taken as one of the ordinary risks of his employment, and the duty of the engineer was to be vigilant in avoiding it; and, if the jury believe that the lack of such vigilance on the part of the deceased contributed to the accident, then the plaintiff cannot recover. ”
“The court is asked to instruct the jury that the duty that an employer owes'to the employe is to exercise ordinary care in providing the employe a safe place in which to work; and what is ordinary care is such care as men of ordinary prudence use in similar circumstances in the same employment.”
“The court is asked to instruct the jury that there is no evidence to show that the construction of a culvert at the place where the accident happened would have avoided, or would probably have avoided, the accident. ”
The first instructidn is faulty, in that it declares that the burden was on the plaintiff in the first instance to show that the “plaintiff” was in the exercise of due care at the time of the accident. It is said that the use of the word “plaintiff” was evidently a clerical error, and that it would be readily perceived that it was intended to charge that it must be shown that the deceased was free from negligence; but, if the charge had been given as asked, it might have misled the jury. As framed, it does not state the law correctly, and therefore it cannot be successfully
It is claimed on behalf of plaintiff in error that the second instruction asked by the company presents the rule that an employe assumes the ordinary risks of his employment, and cannot recover for an injury resulting therefrom, and that the court did not present this question to the jury. It is'doubtful whether the instruction was intended to refer to this rule, for the concluding part thereof only asks the court to rule to the jury that, if lack of vigilance on the part of the deceased contributed to the accident, then the plaintiff could not recover, and it is entirely probable that the trial court understood the instruction to bo applicable only to the question of contributory negligence, which was fully covered by the charge of the court.
If the present contention of counsel is correct, then the instruction, as asked, is open to the objection that it confuses together two distinct propositions, to-wit, that relating to the risks assumed by an employe in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances; a mode of asking instructions which cannot be approved, as it is liable to mislead the court and to confuse the jury. Granting, however, to the plaintiff in error the benefit of the exception now urged, it does not appear that it was error to refuse the instruction under the circumstances of this case. It is doubtless true, as urged in argument, that persons employed upon lines of railway which are constructed at the foot of mountain ranges are necessarily subjected to greater dangers than those employed upon railways passing through a prairie country, lor the reason that there is greater liability to obstructions being thrown upon the track in the one case than in the other; and it is unquestionably true that one who engages as an engineer or other train-hand upon a line running at the foot of a mountain range assumes the increased risk due to this fact. In neither case, however, does the employe assume the risks and dangers that are caused by negligence on part of the railway company. It is the duty of the company to use all such reasonable care, as a corporation managed by prudent men should use, in constructing and maintaining a track and road-bed in such a condition as not to subject its employes to unnecessary risks and dangers. What will be required of a company in the exercise of ordinary care in constructing its track will vary with circumstances. A mode of construction which might ho entirely safe in caso of a line running through a level country might he wholly uusafe if applied to a line running along a mountain range. The employe has a right to expect that a company operating a line, which by reason of its location is subject to certain hazards, will construct the road-bed and track with due reference to such hazards. If the company has used due care in the construction of its line, having regard to its surroundings, and yet, by reason of its proximity to mountains, rivers, or other natural objects, there exist dangers from land-slides or overflows, or other like casualties, a person entering into service of the company assumes
The fourth instruction was properly refused, because there was evidence before the jury tending to show that if a culvert or other outlet for the water coming down the gulch at the place of the accident had' been provided, the track would not have become covered with sand and gravel.
In order that it may clearly appear that, as already said, it was not emir to refuse tlie several instructions asked by the defendant, because the same, in so far as they are correct statements of the law, are embraced in the charge of the court, it may be advisable to quote at length therefrom. It was staled to the jury by the court that—
“The rules to be applied in determining this controversy, geni lemon, are applicable to all cases in which a person in service may have a right of action against his employer. The circumstance that the defendant is a railroad company does not distinguish the case from others of the same class. In general, a person who receives an injury while in the service of another lias no right of: action against his employer for such injury, it is only wiien the person employing him lias omitted some duty — failed in something enjoined upon him by tlie law--that any such right arises. And this right arises only when the person injured is in the discharge of his duty to tin; extent that it may be said that ho is free from fault. The person injured must be without fault, and the employer must be in fault, before any right of action can exist. So in all these eases there is a double aspect. It is fir,si to be ascertained whether t lie person injuied was in any way negligent; and, xacondl;/, whether the employer was negligent in a manner which caused the injury. These features must co-exist; tlie person employed must, be without fault, the other must be in fault. ¡¡ the employer had been in fault, and the other has been negligent also, there is no right or action.
“(2) And in this instance, upon the circumstance developed by the evidence, it is (“specially necessary to consider first, and decide, whether this man who lost his life was in fault at the time ot tlie accident. There is some evidence tending to show that storms in the region of country traversed by this railroad are of frequent occurrence in the fall season of the year, and with the effect often to bring down upon the track considerable quantities of sand and gravel; so that, with a storm prevailing at and before tlie time of 1 lie accident, iiie circumstances wore such as to make it reasonable to expect that some such tiling would occur as did in fact occur, in respect to washing down gravel and sand upon the track; and this made it the duty of the engineer to look out for these things very carefully. It was necessary for hitn, under all the circumstances, to be especially upon his guard in order to avoid injury to his train and to himself. And there is evidence tending to show that he was not in that attitude at the time of the accident. You remember that the fireman who was witli him upon the engine states that at the time of the accident he was of the impression that the engineer was asleep. lie cannot state this with certainty, only from tlie position rn which lie sat, and from his attitude at the time. Aovv, if that be true, there can be no right oí action in the plaintiff here for his death, because all the circumstances required him to be vigilant and attentive to his duties in the place in which he was put. If he had boon awake, and looking out for obstructions upon the track, it might be that, he would have seen this obstruction in time to stop, or at any rate to check the train, so that tlie engine would not have been overturned, and thus the injury would not have resulted.”
“(5) There is, however, another matter which stands in a different attitude, and that is as to the construction of the road at the place where the accident occurred. There is testimony to show that the road at that place was built across the mouth of the gulch or draw, and, if 1 understand the testimony well, about upon the same level as the mouth of the draw, and that the gap which was made by the draw below the track, and towards the river, on the right-hand side coming this way, was closed up by the earth taken from the cut, or perhaps by the sand which had washed down; and it would seem from all the circumstances detailed in evidence that it would have been practicable to make a culvert under the track at that place, keeping open the channel towards the river, through which the sand might have washed out towards the river, and in that manner obstruction might have been avoided at that place. The testimony is perhaps not as full and complete on this point as it might have been made, but I think, from all that is stated before you.it is fairly open to this construction. Of course, that would depend somewhat upon the size of the opening made in the culvert or channel underneath the track, and upon the quantity of sand and gravel coming down through the gulch; but, looking into all the circumstances, as well as you can understand them from the testimony, if .you are of the opinion that the track might have been built in this way with reasonable expense, and so as to avoid the possibility of sand coming upon the track and obstructing it, you are at liberty to say that the company was negligent in respect to the manner of building the track at that place. It seems from the testimony that this track had been obstructed several times; I do not recall just now how often before this time; so that there was enough in the circumstances to call the attention of the company to the fact-that there was danger from this source.
“(6) It is true that, in building its road, and as a matter of duty towards persons in its service, the company is only required to exercise ordinary diligence and care, — such care and diligence as men usually bestow upon business of the like nature; so that it is not the highest degree of diligence which you are to demand of the company in this respect, but only such as men ordinarily give to such concerns. Then the question will be in your minds, whether the road at this place was built with ordinary care and diligence, with a view to the protection of the lives of persons in the service of the company. The rule is different when it comes to the case of a passenger. A passenger who is injured may complain of almost anything as a defect in the road and its structure, showing negligence on the part of "the company. But in respect to persons who are employed by the company, the rule is somewhat different; that is to say, there is a less degree of care and diligence required by the company.in respect to the servants of the company than is required in respect to persons traveling on the road in the capacity of passengers. So, then, gentlemen, if you are able to relieve the deceased, in respect to saying that he was in the fulfillment of his duty, was performing well the duty which was required of him on the occasion, and tlnit the company is negligent in respect to the manner of constructing its road, you may be able to find a verdict for plaintiff; otherwise for the defendant. ”
“(7) Mr. Willard Teller. I would like to ask specially referring to the question of- this culvert. I would like to have the court charge the jury that there is no evidence except that of Mr. Hall in respect to whether a culvert would*547 be safer or not, and that is an opinion of his, that he thought it would be safer; that is the only evidence in respect to it.
“The Court. I believe that is true. I think that he is the only witness who testiiied in that way. I think also, gentlemen, you can consider the matter upon your own judgment and knowledge of such matters; that is to say, having regard to the testimony before you, the situation of the road, and the topography of the ground, the gulch coming down in the way described by the witnesses, you, as men of some knowledge of affairs, may determine in your own minds, quite independently of Mr. flail's testimony, whether it was practicable to make a culvert there with reasonable cost, which would have the effect to carry away the sand and gravel so it would not be an obstruction; 1 believe they testify to some rock coming down in the sand; whether it would carry it away so it would not bo an obstruction upoii the track.”
Exception is taken to the portions of the charge wherein it is said that the jury might exercise their own judgment and knowledge, upon the evidence adduced before them in regard to the situation of the road, the topography oil the ground, and the existence of the gulch, and determine therefrom whether or not it was practicable to make a culvert at a reasonable cost, which would carry away the sand and gravel, and prevent the same from becoming an obstruction on the track. It docs not appear that objection was taken to this evidence when it was introduced, and, if the jury could not properly consider and weigh the same in reaching a conclusion upon the issue before them, it was a useless waste of time to put it before them. Clearly, when the jury was called upon to determine whether a given part of the road was or was not properly built, it was necessary that they should he informed by evidence of the mode in which the track way constructed, of the nature of the ground and its surroundings, in order to aid them in reaching a proper conclusion. If admissible upon the issue, then it would be impossible to prevent a jury from using their own judgment and knowledge in determining w'hat conclusion should be drawn from the evidence. The human mind is so constituted that, in considering and weighing different facts, and endeavoring to apply the same to the solution of a matter in dispute, the conclusion reached will be the result of the facts in evidence, viewed in the light cast thereon by the judgment and knowledge belonging to the deciding mind. There was nothing in the nature of the inquiry involved in the issue submitted to the jury which took it out of the usual rule that the jury must decide the ultimate question in dispute.
Counsel for plaintiff in error cite in argument the decision of the supreme court in the case of Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Rep. 1166, wherein it was sought to hold the company liable in damages for the death of a switchman, who was crushed between two cars, the draw-heads of which passed or slipped by each other, which in turn was caused by the extreme sharpness of the curve in the line of the railway at the point whore the accident happened. The ground of negligence charged was that the curve was so sharp as to render the road unsafe. It was held that there was no rule of law restricting a railway company, so far as its duty to employes was involved, in the character
In the instructions given the jury the court very carefully presented the decisive questions involved in the issues, and correctly stated the law applicable thereto. The errors assigned are therefore overruled, and the judgment is affirmed, at cost of plaintiff in error. „