Boyle v. Union Pac. R. Co.

• Decision Date: 27 March 1903
• Docket Number: 1424
• Court: Utah Supreme Court
• Parties: DANIEL L. BOYLE, Respondent, v. THE UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

71 P. 988

25 Utah 420

DANIEL L. BOYLE, Respondent, v. THE UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

No. 1424

Supreme Court of Utah

March 27, 1903

Appeal from the Third District Court, Summit County.-- Hon. S.W Stewart, Judge.

Action to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant company. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Le Grand Young, Esq., for appellant.

W. L Maginnis, Esq., and A. J. Weber, Esq., for respondent.

McCARTY J., delivered the opinion of the court. BASKIN, C. J concurs. BARTCH, J., dissents.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

On the 26th day of May, 1900, plaintiff was, and for thirteen years prior thereto had been, employed by defendant corporation as a freight conductor. On the day in question (May 26, 1900) he was in charge of a freight train consisting of forty-four cars and a caboose. The train was en route from Ogden, Utah to Omaha, Nebraska. Attached to the train, and immediately in front of the caboose, was what is known as a "hotel supply" car, which was used to ship and supply vegetables and meats to hotels along the railroad between Omaha and Ogden. This car would not couple automatically with the coupler on the caboose, which made it necessary to couple it with link and pin, thereby making the distance between it and the caboose so great that plaintiff and other employees of the defendant company who were operating the train could not step from the top of one car to the other. It was without doors in the ends, and had no platform, end ladders, grab or hand irons. In fact, it was without any of the equipments and conveniences necessary to enable plaintiff and the other members of the train crew to pass through or over it from the caboose to the other cars. The car in question was equipped for and belonged to the passenger service, but was sometimes placed in and hauled with the freight cars.

Plaintiff left Ogden at about 4:10 in the morning, and arrived at Echo at 10 o'clock a. m. Having stopped at several stations between the two points to load and unload freight, he was behind time. At Echo he received an order to meet a certain freight train at Emory, the next station, which is about nine miles east of Echo. Being behind time, he also got what is known as a "time" order, which informed him that two passenger trains coming west, and traveling at the rate of fifty or sixty miles an hour, would pass Castle Rock without stopping; one at 11:30 a. m., and the other ten minutes later. Castle Rock is the next station, and about six and one-half miles east of Emory. Plaintiff had the right, under this time order, to either side-track his train and wait at Emory until the passenger trains passed, or to go on to Castle Rock, provided he had sufficient time to make the run and side-track before the arrival there of the passenger trains. Plaintiff left Echo at 10:28, and it was agreed between him and the engineer that if they found the freight train they were to meet side-tracked at Emory they would go on to Castle Rock without stopping, as they would be compelled to stop over at Emory for twelve hours if they side-tracked there for the passenger trains, whereas by going on this delay would be avoided. They arrived at Emory at 11:04 or 11:05, and found the freight train side-tracked, and went on without stopping, expecting to reach Castle Rock before the arrival of the passenger trains which were to pass there at 11:30. The schedule time between Emory and Castle Rock for plaintiff's train was forty minutes, but, as will be observed, on this occasion he had but twenty-five or twenty-six minutes in which to make the run. According to his own testimony, this was "short time," even if his train met with no delays. A single stop, however short, would have made it impossible for him to get his train to Castle Rock before the arrival there of the passenger trains. The record shows that, while it was not compulsory for him to do so, yet under the time order he was expected to go on to Castle Rock, provided he could get his train there in time to clear the main track for the passenger trains. The record also shows that it was not only necessary, but the duty of plaintiff, the time being short, for him to be at the head of his train after it left Emory. Soon after passing Emory he started to go to the head of the train, and in order to get on top of and over the hotel supply car, he set a hand brake that was at the end and attached to the car. The brake when set was held in place by a small piece of iron known as a "dog," which, as the brake was tightened, caught in the teeth of a ratchet wheel. Plaintiff, having no other means of passing over the car, stepped on top of the brake thus fastened, and placed his hands on the roof of the car, and was in the act of pulling himself onto the top thereof, when the brake on which he was standing came loose and turned, and, there being no grab or hand irons on the car for him to hold to, he was thrown from the train, and run over, which resulted in the loss of one foot and permanent injury to the other. On former occasions he had with safety and in the same manner climbed onto other cars constructed and equipped similarly to the one in question. One witness testified that soon after the accident he examined the brake, and found it to be so loose that the "dog" played back and forth over the ratchet wheel, and that the "dog" contained a small nick, that appeared to be an old defect, which defect added to the inefficiency of the brake.

The foregoing are, in substance, the facts relied upon by plaintiff for a recovery.

When plaintiff rested, defendant moved for a nonsuit in the following terms: "Comes now the defendant, and moves the court for a nonsuit in this case, for the reason that plaintiff has failed to sustain the allegations of the complaint in this: (1) That plaintiff has failed to show that he exercised due care, or was without fault, in attempting to cross from said caboose onto said supply car. (2) Plaintiff has failed to show that the failure to equip said car in the manner alleged in said complaint made the duties of said plaintiff extraordinarily hazardous or dangerous, and that said plaintiff was ignorant of said condition; and for the further reason that plaintiff has not established the fact that such danger was not so obvious that a reasonably prudent man, in the exercise of such urgent duties as plaintiff was called upon to perform, would have undertaken to perform. (3) The plaintiff has failed to show any pressing or urgent necessity for plaintiff to go to the front of the train, and cross from said hotel car. (4) Plaintiff has failed to show that he had no other or safer means of crossing from one car to another. (5) Plaintiff has failed to show that said supply car was negligently or carelessly in a condition of disrepair, in this: That the dog which should have prevented the brake wheel upon which plaintiff stepped from turning and holding it fast was out of order, or so worn that it did not hold said wheel firmly, and permitted the same to turn when plaintiff stepped thereon, which was unknown to plaintiff, or could not have been discovered by him, and which was known or might have been known to defendant. (6) That the evidence shows that the brake wheel, dog, and ratchet were in reasonably good repair and order, and they would hold the brake when used for any use for which intended to be used. That the extraordinary use made by plaintiff of this brake was uncalled for and unexpected, and one that the brake was not calculated to sustain." The motion was overruled, to which ruling defendant duly excepted.

Defendant introduced testimony which tended to show that the brake on the car was in good order and repair at the time of the accident. It also introduced in evidence certain rules regulating the running and management of its trains, at the time of the accident. So far as material to this case, they are as follows: "Conductors and engineers will be held equally responsible for the violation of any rule governing the safety of their trains, and they must take every precaution for the protection of their trains, even if not provided by the rules." "Rule 90. No train must leave a station expecting to meet or to be passed at the next station by a train having the right of track, unless it has full schedule time to make the meeting or passing point and clear the track by the time required by rule 86;" which provides that, "When a train of inferior class meets a train of superior class on a single track, the train of inferior class must take the siding, and clear the train of superior class ten minutes."

Mr. Knoder, who was the engineer on plaintiff's train at the time of the accident, and in defendant's employ at the time of the trial, was called as a witness for defendant, and on cross-examination testified as follows: "Q. Your attention has been called to rule No. 90. I will ask you whether that rule is observed by trains running on schedule time? A. No, sir. Q. How long has that condition of affairs existed, so far as you know? A. Always. Q. You said to Mr. Young that you had until 11:30 to make Castle Rock. Was that the instruction that you received in your time order? A. Yes, sir; as long as we had time to make Castle Rock by 11:30, it was our duty to do so. I have been an engineer about fourteen years."

The issues were tried by a jury, who returned a verdict for plaintiff, and assessed his damages at $ 10,000. Defendant appeals.

After the appeal in this case had been perfected, appellant made a motion, supported by affidavit of its counsel, to amend the record by including therein certain...