Chilton v. Union Pac. R. Co.

• Decision Date: 01 April 1892
• Citation: 29 P. 963,8 Utah 47
• Court: Utah Supreme Court
• Parties: ISAAC CHILTON, ADMINISTRATOR, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

29 P. 963

8 Utah 47

ISAAC CHILTON, ADMINISTRATOR, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

April 1, 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, for the respondent.

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

OPINION

ZANE, C. J.:

This is an appeal from an order denying a motion by the defendant for a new trial and from a judgment for $ 8,000. The action was brought to recover damages in consequence of the death of the late Joseph Shaw, caused, it is alleged, by the negligence of the defendant while he was in its service as a brakeman. The defendant insists that the evidence does not prove that the death of the intestate was caused by its neglect, and that the judgment was for that reason erroneous. It appeared from the record that the defendant's track descended two hundred and ten feet per mile from Eureka to Ironton, a distance of about five miles; that the train consisted of an engine, tender, five cars, and a caboose; that the valves of the engine were out of repair; that one of the cars had no brakes, and that the brakes on another were defective; that the cars were all loaded; that the engineer was upon his first trip over that part of the line, and was somewhat inexperienced; that, in obedience to the signal of the conductor, the engineer started the train down the grade; that the steam brakes on five of the cars failed to act; that the engineer deemed it safer not to reverse the engine on account of its speed; that the hand brakes were insufficient; and that the train dashed on, uncontrolled, over a defective frog, at which the cars left the track, and threw the deceased from one of them, and injured him so that he died soon afterwards. No want of ordinary care contributing to the injury appears on the part of the deceased. From the evidence in the record we cannot say that the jury was clearly wrong in finding that the death of the plaintiff was a result of the defendant's negligence.

Defendant's counsel also urges that the court erred in permitting the widow to testify to the number of the deceased's children, and to the treatment of the family by her late husband; and that the court also erred in charging that in assessing the damages the jury might take into consideration the number and ages of the members of his family dependent upon him for support. The common law does not authorize an action for the benefit of the heirs of a person whose death has been caused by the wrongful act or neglect of another. The intent of the statute is to furnish them a remedy by which they may obtain such compensation for their loss, in consequence of such death, against the person whose wrongful act or neglect caused it. The statutes of this Territory making such provision, so far as necessary to quote them, are as follows: § 3179: "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. * * * In every action under this and the preceding section such damages may be given as, under all the circumstances of the case, may be just." Volume 2, Comp. Laws Utah 1888. § 2962, Id.: "And the amount received in every such action shall be distributed, by direction and decree of the proper probate court, to such persons (other than creditors) as are by law entitled to distributive shares of the estate of such...