9 Utah 146 | Utah | 1893
This is an appeal from a judgment and order denying a new trial, made in the fourth district court, in favor of plaintiffs, and against appellant. The judgment was for damages accruing to plaintiffs by reason of the death of George S. Woods, who, it is alleged by plaintiffs, was killed by the negligence of the defendant. Three specific acts of negligence on the part of defendant are alleged, all of which, it is claimed, contributed to the accident resulting in the
The facts proven are substantially as follows: On the-day of the accident, deceased was in the employ of defendant, as- a carpenter, working at Lake Station, in Box Elder county; that he was accustomed to travel from point to point in a passenger car called the “Outfit Oar.” That defendant, in order to convey plaintiff and other workmen from Lake to Terrace, put this passenger car, with the workmen 'in it, in a freight train, within three or four cars of the engine, and with 18 to 20 freight cars in the rear of it. In this position the car was conveyed to Terrace. As the train was going into the switch at' Terrace the trucks or wheels of the engine mounted the rail at the switch, derailing the train, and wrecking the car .on which deceased was riding. Deceased was killed, and five or six others on the car more cr less severely injured. The passenger car was broken in two, and was partially set on fire. The evidence also, shows that the-engine was derailed by reason of a defective switch, that was much.worn, and the passenger car was crushed by reason of the momentum of the freight cars in its rear. The rear part of the train did not leave the track, and persons on that .part of .the train were not injured. .It
The appellant claims that in this state of the proof the court should have instructed the jury, as a matter of law, that deceased was guilty of contributory negligence, and that having failed to do this, the court should have set aside the verdict as unsupported by the evidence. A number of authorities are cited to sustain this position. We have examined these carefully, and they fail, in our opinion, to sustain the position assumed by appellant. The cases cited are as follows: Hickey v. Railway Co., 14 Allen, 429. In this case a passenger went out of one ear, onto the platform of the one next in the rear, where he stood, — the cars being uncoupled. The car in front was derailed. The one behind ran into it, and plaintiff’s intestate was killed. It was held the plaintiff could not recover. This case is substantially overruled in Dewire v. Railway Co., 148 Mass. 343,
The case of Goodwin v. Railway Co., 84 Me. 203, 24 Atl. Rep. 816, is cited. In that case, plaintiff’s intestate ivas riding on the platform of a passenger car, which was running round a curve very rapidly, thereby causing the car to lurch; and the deceased fell off, and was killed. Here, again, it will be seen the accident could not have happened but for the act of deceased in standing on the platform, as the car was running in-the ordinary way, did not leave the track, and those inside of it were unhurt. The case of Railway Co. v. Hoosey, 99 Pa. St. 492, was exactly like the above, and needs no comment in addition. The case of Railway Co. v. Jones, 95 U. S. 441, was a case in which plaintiff voluntarily got on the pilot of a locomotive engine, and while riding there was hurt by coming in collision with an obstacle on the track. He had been warned of the danger of such position, and had1, been forbidden to ride there, but persisted in doing so. It can hardly be claimed that this is an authority for the' position of counsel for appellant in the case at bar. The case of Clark v. Railway Co., 36 N. Y. 135, is cited. In that case, plaintiff was riding on the platform of a street, car, and was hurt by a cart which the car ran into. It. Avas held he was entitled to recover. The case is squarely against the appellant here.
Beach, Contrib. Neg. § 54, is also cited. That section, or the part relied on, is as follows: “It is not negligent par
The distinction between this class of cases and the case at bar is very marked. In this case the act of defendant in placing the passenger car between loaded freight cars was criminal negligence of the gravest character, and the parties responsible for it were guilty of felony. See section 2352, 2 Comp. Laws Utah. The proof shows gross neglect in the defendant, in failing to keep the track and switch in repair. By the uncontradicted testimony it appears that the defect in the switch was quite apparent; that a similar wreck had occurred at the same switch a few days before, and nothing had been done or attempted to repair -the •defect. The injury to plaintiffs’ intestate was due to one- •or both of these negligent acts or omissions of defendant, and might have occurred to him, no matter where he had
It is not necessary to review these cases, and others that might be cited, except to call attention to the case of Dewire v. Railroad Co., 148 Mass. 343, 19 N. E. Rep. 523, for the purpose of showing that in that state the rule declared in Hickey v. Railway Co. has been modified, if not overruled. In the Dewire case the plaintiff was riding on the platform, and was hurt in a collision between the train and a locomotive. The collision was caused by the neglect of the defendant. It was held that the plaintiff was entitled to recover. The court, in conclusion, in this case, say: “Whether the plaintiff would have been hurt more or less than he was if he had been inside of the car can only be conjectured, for all the passengers in the car were put in peril because the car was partially overturned by the collision.” This language is peculiarly applicable to the case at bar, the difference being that the case under consideration is a much stronger one. Here the passenger car was crushed and broken in two. Nearly all the persons in it were severely injured. It was partially set on fire. Can any man say that deceased would not have been killed, had he been on the inside? We think not.
We have not deemed it necessary to discuss the claim of necessity for the presence of deceased on the platform, which would, in any event, have been a proper matter for