Bowers v. Union Pacific Railroad Co.

Decision Date04 January 1885
Citation4 Utah 215,7 P. 251
CourtUtah Supreme Court
PartiesALVIN D. BOWERS, RESPONDENT, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT

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

The court of its own motion charged the jury as follows:

The plaintiff brings his suit to recover damages for personal injuries to himself while in the employ of the defendant. The facts are all with you, you are the sole judges of them and of the credibility of the witnesses. The law which you are to apply to the facts, as you shall find them, you must receive and take from the court. The plaintiff is bound to make out and show the existence of the facts necessary to entitle him to recover by a preponderance of testimony. By a preponderance of evidence is that state of the case which you think most likely to have been the case, the way your mind preponderates. This makes out a preponderance.

If you should find from the evidence that the defendant was not negligent, then the plaintiff cannot recover, and if you should find that the defendant was negligent, and the plaintiff was also guilty of negligence which contributed to the accident and injury, as it shall be explained to you hereafter, then the plaintiff cannot recover.

The court, at the request of plaintiff, also gave the jury the following instructions:

1st. The measure of precaution and care required by law of persons in the exercise of their rights must always be in proportion to the exigencies of the occasion, and also in view of the likelihood of endangering or affecting other parties by the exercise of such rights, and this is especially so when the life or limb of a human being is concerned.

2d. The negligence on the part of the plaintiff that will defeat a recovery in this must be such as contributed to the injury. The mere fact that he was upon or near the track when he was struck is not conclusive evidence of negligence, if he was ordered or directed to go there in the course of his employment, and did not know, and had no means of knowing of the defect or fault in the machinery of defendant, if you find that the accident was the result of some defect in the machinery of the defendant. Nor is it any conclusive evidence of negligence on the part of plaintiff that he attempted to cross the track, unless you should find that such attempt to cross the track was doing what a reasonably prudent person under the existing circumstances, would not have done.

3d. If you are satisfied from the evidence, that plaintiff has a right to recover, you should award such damages as will, in your judgment, fully compensate the plaintiff for the injuries and losses that he may have sustained in consequence of the alleged misconduct of the defendant.

4th. In estimating damages the jury may take into consideration whatever of bodily or mental pain and suffering the plaintiff has endured, and the fact, if such be the fact, that by reason of the injuries he received, he may not be as well able to labor and earn a living hereafter as he was before the injury. Also the extent to which his injuries may permanently disable him, and also any expense incurred by him.

At the request of the defendant the court further instructed the jury as follows:

1st Negligence is the failure to do what a reasonable and prudent person would have done, under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done.

2d. Contributing negligence is defined to be that act on the part of a party injured that is proximate to the damage done, and without which the injury could not have happened. So if the jury find from the evidence that the plaintiff was careless and negligent within the definition above given in standing on or near the track while the cars were ascending the track he cannot recover, although the defendant may have been negligent in providing suitable machinery.

3d. If the jury find from the evidence that the plaintiff knew, or had means of knowing of the defect or fault in the machinery of the defendant, and after such knowledge or means of knowledge, and without protest on the part of plaintiff in that regard, or promise on the part of defendant that such defect should be remedied, he continued in the employment of defendant, and was thereafter injured by such defect plaintiff cannot recover.

5th. A railroad, or other company, or employer is under no obligation to furnish the best or safest machinery for its employees. It is required to use ordinary care in the construction of its machinery, and that the same shall be ordinarily or reasonably safe for the purpose for which it is used. But if after exercising reasonable care, machinery is found defective, by which an employee is injured, he cannot recover.

The defendant also requested the court to give the following instructions:

4th. If the jury find from the evidence, that the point where plaintiff was injured was a dangerous one, and that he had a warning of this either from the agents of the defendant, or by his own common sense, and notwithstanding such warning plaintiff continued in such dangerous place at a time or moment when such act was hazardous, and he could have been elsewhere, the risk was his own, and his act contributed to the injury, and he cannot recover.

6th. A party entering into the employment of another takes upon himself the natural and ordinary risks of such an employment, be it extra hazardous or not. Therefore if the jury believes from the evidence that plaintiff knew or had means of knowing of the danger threatening him by working in said mine, or said stope, at the time and place he was injured, he cannot recover.

But the court refused to give such instructions in the form asked, but gave them in the following modified form:

4th. If the jury find from the evidence, that the point where plaintiff was injured was a dangerous one, and that he had warning of this either from the agents of the defendants, or by his own common sense, and notwithstanding such warning plaintiff continued in such dangerous place, at a time or a moment when such act was hazardous, and he ought to have been elsewhere, after the duty of his immediate employment or service had ceased, and consistent with that employment, the risk was his own, and his act contributed to his injury, and he cannot recover.

6th. A party entering into the employment of another takes upon himself the natural and ordinary risks of such an employment, be it extra-hazardous or not.

The defendant also requested the court to instruct the jury as follows:

7th. The court instructs the jury that under the pleading and evidence in this case the plaintiff cannot recover, and the jury must find for the defendant.

This instruction was refused.

The other facts sufficiently appear in the opinion.

Affirmed.

Messrs. Williams & Young, for appellant.

A nonsuit should have been granted: Louisville R. R. Co. v. Orr, 8 Am. and Eng. R. R. Cases, 94; Umback v. Lake Shore and C. R. R., 8 Am. and Eng. R. R. Cases, 99; Thompson on Negligence, sec. 1008, 1009; More v. Minn. & St. Paul R'y Co., 11 Am. and Eng. R. R. Cases, 172; Mo. Pac. R'y Co. v. Lyde, 9 Am. and Eng. R. R. Cases, 190; Galveston R'y Co. v. Lempe, 11 Am. and Eng. R. R. Cases, 201; Greenleaf v. Ill. Cen. R. R. Co., 4 Am. Reps. 184; 2 Thompson on Neg., secs. 1015, 1016, 1018, 1019; Kansas Pac. R'y. Co. v. Peavy, 11 Am. and Eng. R. R. Cases, 269; Dillon v. Union Pacific R'y Co., 3 Dillon C. C. Reps. 321, note and authorities there cited; Loring v. N.Y. C. R. R. Co., 49 N.Y. 524; Jones v. Railroad Co., 95 U.S. S. C. 439; McGlyn v. Brodie, 31 Cal. 377; Michigan Central R. R. Co. v. Austin, 40 Mich. 247.

The evidence was insufficient to justify the verdict: Kelly v. Silvers Springs Co., 34 Am. R. 615.

The damages are excessive: Kansas Pac. R'y v. Peavy, 9 Am. and Eng. R'y Cases 269; R. R. Co. v. Young, 8 Kansas 659; H. & J. C. R. R. Co. v. Buck, 9 A. and E. R. R Cases 369; Union Pacific R. C. v. Hurd, 7 Kansas 390; C. & R. R. Co. v. Jackson, 1 Am. R'y Cases 571.

The instructions given by the court on its own motion and at request of plaintiff were erroneous: 1 Wharton on Negligence 1; Ince v. East Boston Ferry Co. 106 Mass. 149.

Mr. Arthur Brown, for respondent.

No notice is required to be given of defective machinery to the employer; it is the duty of the employer to exercise reasonable care and prudence in seeing that his machinery is perfect. If he fails to do this, and the machinery is imperfect, although without actual notice to him of the defect, he is liable to his employees: Patterson v. R. R. Co., 76 Pa. St. 389; S. C. 18 Am. Rep. 412; Noyes v. Smith, 28 Vt. 59; Huff v. R. R. Co., 100 U.S. 215; Cooley on Torts, 556 and other cases there cited.

The doctrine of contributory negligence does not apply to injuries received by an employee through the defective machinery of the employer: Snow v. R. R. Co., 8 Allen, 441; Ills. Cen. R. R. Co. v. Welsh, 52 Ill. 183; Cooley on Torts, 557-8, and notes.

2. The doctrine of contributory negligence is a question for the jury, in every case where the negligence does not arise as a matter of necessity from the facts admitted or proven, and is to be determined by inferences from the conduct of persons in trying or dangerous situations. If it involves a question of fact, of prudence, or duty, or danger, or belief, or opinion,--then the jury are to judge whether the party injured had such belief, opinion, fear, etc., and it is a question of fact for the jury even though the elements and outside observable facts are admitted or proven: R. R Co. v. Stout, 17 Wall., 657; Huff v. R. R. Co., 100 U.S. 215; Lanning v. N.Y. Cen. R. R. Co., 49 N.Y. 521...

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