Brown v. Southern Pacific Co.

• Decision Date: 18 April 1891
• Citation: 26 P. 579,7 Utah 288
• Court: Utah Supreme Court
• Parties: ALBERT BROWN, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

26 P. 579

7 Utah 288

ALBERT BROWN, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

Supreme Court of Utah

April 18, 1891

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.

Reversed, and remanded.

Messrs Marshall and Royle, for the appellants.

Mr. J L. Rawlins and Mr. L. R. Rogers, for the respondent.

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

OPINION

ANDERSON, J.:

This action is brought by plaintiff to recover damages alleged to have been sustained by reason of the negligence of the defendant, whereby plaintiff was so injured in one of his hands that it had to be amputated, and also for other bodily injuries. There was a trial to a jury, and a verdict for plaintiff for $ 12,000, for which amount the court gave judgment. There was a motion for a new trial, one of the grounds of which was that the damages awarded were excessive. Upon the hearing of this motion the court ordered the judgment reduced to $ 10,000, by consent of plaintiff, and overruled the motion. The defendant brings this appeal from the judgment and from the order denying the motion for a new trial. The plaintiff was head brakeman on a train on the defendant's road at the time he received the injuries complained of. The train was going west, and reached Blue Creek station, on defendant's line of road, about ten o'clock at night. At this point there is a hill where it is customary to attach another engine, called a "helper" engine, to the train to help it up the ascent. The conductor of the train ordered plaintiff to couple the helper engine, which was standing on a side track, to the engine drawing the train. Plaintiff opened the switch, and called to the man in charge of the helper engine to bring it out onto the main track, so that the coupling could be made.

When the helper engine reached the main track plaintiff signaled the man in charge of it to back the engine up, which he did for about half the distance to the train, and stopped, when plaintiff adjusted the coupling-pin, and signaled him to continue to back the engine, while plaintiff ran to the stationary engine, stepped upon the cow-catcher, and picked up the push-bar to couple into the draw-head of the helper engine. The plaintiff testified that the engine came back with such speed and force that he failed to make the coupling, and was unable to get out of the way, and his left hand was caught between the bumpers of the two engines, and crushed, so that it had to be amputated. He also received a flesh wound in his right thigh. Plaintiff testified that the helper engine came back at the rate of four or five miles an hour. The helper engine was in charge of the fireman, he having been placed in charge of it by the engineer, who was temporarily absent. The plaintiff testified that it was too dark for him to see who was in charge of the engine. It is claimed by plaintiff that the fireman, Fay, who was in charge of the helper engine, was not competent to act as engineer, and that it was his negligent and unskillful management of the engine that caused the accident, and that his incompetency to act as engineer was known to the regular engineer, who placed him in charge, or could have been known if proper inquiry and examination had been made with respect to his competency, and that it was negligence in the defendant company to permit him to be placed in charge of the engine. On behalf of the defendant it is claimed that Fay, although only a fireman, was competent to manage the engine, that due care was observed in employing him as fireman, and that, being in fact a competent engineer, it was not negligence to intrust the engine to him for the particular duty then in hand; and also that he was a fellow-servant with plaintiff, and that, therefore, plaintiff cannot recover, even if the negligence of Fay caused the injury complained of. It is further contended that the plaintiff was guilty of negligence contributing directly to the injury complained of, and for that reason cannot recover.

At the close of the evidence on behalf of the plaintiff, the defendant moved for a nonsuit, on the ground that no negligence on the part of the defendant had been shown; that, if any negligence had been shown which tended to produce the injury complained of, aside from the contributory negligence of plaintiff, it was the negligence of a fellow-servant; and that plaintiff was guilty of negligence which contributed directly to the injury complained of. The motion was overruled by the court, and this ruling is claimed as error. Whether the motion should have been sustained or not is now immaterial, as the defendant waived any error there may have been in the ruling of the court, by failing to stand on its motion, and in offering evidence in its behalf after the ruling of the court had been made. Insurance Co. v. Crandal, 120 U.S. 527, 7 S.Ct. 685, 30 L.Ed. 740; Railroad Co. v. Mares, 123 U.S. 710, 8 S.Ct. 321, 31 L.Ed. 296; Insurance Co. v. Smith, 124 U.S. 405, 8 S.Ct. 534, 31 L.Ed. 497.

At the close of the evidence the defendant requested the court to instruct the jury that the evidence did not warrant a verdict for the plaintiff, and that they should return a verdict for the defendant, which the court refused to do, and this refusal of the court is one of the errors complained of. We have examined the evidence, and think there was no error in the court submitting the question of negligence to the jury.

The defendant requested the court to give the...