Andreson v. Ogden Union Railway & Depot Co.

• Court: Supreme Court of Utah
• Writing for the Court: ANDERSON, J.
• Citation: 8 Utah 128,30 P. 305
• Parties: HANS C. ANDRESON, RESPONDENT, v. OGDEN UNION RAILWAY AND DEPOT COMPANY, APPELLANT
• Decision Date: 16 July 1892

30 P. 305

8 Utah 128

HANS C. ANDRESON, RESPONDENT, v. OGDEN UNION RAILWAY AND DEPOT COMPANY, APPELLANT

Supreme Court of Utah

July 16, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Williams and Van Cott, for the appellant.

Messrs Evans and Rogers and Mr. N. G. Horn, for the respondent.

ANDERSON J. ZANE, C. J., and BLACKBURN, J., concurred.

OPINION

ANDERSON, J.

This action was brought by plaintiff in the first district court to recover damages alleged to have been received by reason of the negligence of defendant's servants while he was in its employ as a laborer. The complaint alleged the corporate capacity of the defendant, and that on the 21st day of May, 1889, it was engaged in the business of constructing and repairing roadbeds and grades upon which to run its locomotives and cars, and was operating the same in hauling gravel, and that the plaintiff was employed as a common laborer; that while he was so employed he was ordered by the foreman of the defendant to work on the roadbed and grade at a point under an embankment which was loose and defective and unsafe, and which was unknown to be so by plaintiff, and was known to be so by defendant; and that while he was so working, and without fault on his part, he was injured by reason of the embankment falling on him, to his damage in the sum of $ 20,000. The answer of the defendant denied all of the allegations of the complaint, except the corporate capacity of the defendant and the character of the business in which it was engaged. The cause was tried to a jury, and there was a verdict and judgment in favor of the plaintiff for $ 7,000. The defendant filed a motion for a new trial, which was ordered granted, unless plaintiff would remit $ 2,500 of the judgment, and which was remitted by him; whereupon the motion for a new trial was denied, and the judgment ordered to stand for $ 4,500 and costs. The defendant brings this appeal from the judgment, and from the order overruling its motion for a new trial.

On the day of the accident the defendant was operating a train of cars hauling gravel from a pit near Ogden. The cars were run into a pit about two hundred and fifty feet long, and there loaded by a crew of men, some fifty or sixty men being engaged in the work in various capacities. The gravel and earth were taken from an embankment sixteen or eighteen feet high, and nearly perpendicular. Some of the men worked with picks, and undermined and caved down the embankment, while others loaded it on the cars. When the bank became too far removed from the track on which the cars were loaded to be convenient in loading the cars, the switch or track would be moved, as a whole, nearer to the bank, and at such times it became necessary to bed the ties, and straighten and level the track. The plaintiff had been in the pit about a week assisting in loading the cars and moving the track, but at no time engaged in caving down the bank. On the forenoon of the day on which the accident occurred, Shea, the defendant's foreman, ordered one Merritt to undermine a portion of the bank. Merritt cut a gash about fifteen feet in length, and about five feet under the bank from its face, and about two feet high. The plaintiff, being engaged in loading cars, did not notice what had been done by Merritt. After several hours, Shea ordered Merritt to go to the top of the bank, and cave or throw down. Merritt cut a gash at the east end of the bank, in the face of it, and a trench along the top of it, back about five feet from the face of the bank, and also a number of holes a foot or so in depth, so as to loosen the dirt and make it fall. This work was done under the direction of Shea; but before it was finished, and while the dirt and gravel were liable to fall, Shea ordered Merritt to come down and assist in moving the track nearer the bank, which was done. Shea then ordered plaintiff to fill up the low places and tamp the ties, to perform which labor required him to stand part of the time near the bank, with his back towards it. He was not aware of the dangerous condition of the bank, and while engaged in fixing the track and ties the bank broke and fell in the dimensions in which it had been cut. A large quantity of gravel fell upon the plaintiff, and pressed him to the ground and across one of the rails, whereby one of his legs was dislocated, his jawbone broken, and he was otherwise seriously injured, and was crippled for life. The evidence showed that it was the custom, when the bank was undermined, to continue the work until it was thrown down, at which time warning would be given to the laborers, and that this was the first time the bank had been left standing after being undermined. When it fell no one was working on the bank to throw it down, and no warning was given; the men being engaged in moving and fixing the track. The evidence was conflicting as to whether warnings were ever given except when the train was coming in or going out of the pit, or when some one was on the bank throwing it down. At the time of the accident there was no train there, nor was there any one on the bank trying to throw it down.

Counsel for the appellant insist that the verdict is unsupported by the evidence, that the evidence shows the defendant was not guilty of any negligence, and the plaintiff was guilty of such contributory negligence as should defeat his recovery. Contributory negligence on the part of the plaintiff was not pleaded by the defendant as a defense to the action, but notwithstanding its failure to do so, it was permitted, without objection, to introduce evidence tending to show negligence on the part of the plaintiff tending to produce the injury complained of. The court instructed the jury fully, and...