7 Utah 363 | Utah | 1891
This action is brought to recover damages for the death of plaintiff's decedent, Louis T. Webb, alleged to have been caused by the negligence of the defendant. The case was before this court on a former appeal (Webb v. Railway Go. ante. 24 Pac. Rep. 616), and was reversed, and another trial was had in the district court, and plaintiff recovered a verdict and judgment in the same amount as at the first trial. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling the motion. At the trial, by stipulation between counsel, the evidence embodied in the record upon the first appeal was read to the jury. The court gave the same instructions to the jury that were given upon the first trial, except as to the measure of damages, and the same requests, made and refused at the first trial, were made and refused at the second.
Plaintiff's decedent was a car-inspector and repairer in the yards of the defendant at Salt Lake City. An eastbound train, at the station, in switching, pulled out the draw-head of a refrigerator-car, and the- train separated. The forward part was backed up, and broke the brake-
The instructions given the jury by the court on this point, and which are claimed to be erroneous, are as follows, to-wit: (1) “The court charges you that if you find from the evidence that the death of Louis T. Webb was caused without fault or negligence on his part, while he was betwéen the cars assisting the brakeman to couple the same, on account of the negligence of those in charge of said train in moving or backing said train, without notice or warning to said deceased, you will find in favor of the plaintiff; unless you also find that such backing of the train was due solely to the negligence of the fellow-servant of said deceased engaged in the same depart
We think the instructions state the law correctly, and are in conformity with the rule laid down, by this codrt in Daniels v. Railway Co., 6 Utah, 357, 23 Pac. Rep. 762. See, also, Railway Co. v. Ross., 112 U. S. 377, 5 Sup. Ct. Rep. 184; Railway Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590. In the last case cited, Justice Rield says (page 653, 116 U. S., and page 596, 6 Sup. Ot. Rep.): “The words, 'same general business/ have reference to the general business of the department of service in which the employé is engaged, and do not embrace business of every kind which may hav^ some relation to the affairs of the employer, or even be necessary for their successful management. If any other construction were adopted, there would be no such thing as a separate department of service in the business of railroad companies; for whatever would tend to aid in the transportation of persons and property would come