Coates v. Union Pacific Railroad Company, a Corp.

• Citation: 67 P. 670,24 Utah 304
• Decision Date: 12 February 1902
• Docket Number: 1307
• Court: Utah Supreme Court
• Parties: EDWIN COATES, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

67 P. 670

24 Utah 304

EDWIN COATES, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

No. 1307

Supreme Court of Utah

February 12, 1902

Appeal from the Third District Court, Summit County.--Hon. A. G. Norrell, Judge.

Action to recover for injuries alleged to have been caused by the negligence of the defendant company. From a judgment in favor of the plaintiff for $ 15,000, the defendant appealed.

REVERSED and remanded.

A. W Agee, Esq., for appellant; Le Grand Young, Esq., of counsel.

The signals required to be given at highway crossings, are for the exclusive benefit of persons traveling on the highway and about to cross the railway track. Rorer on Railroads, 1004 1006, 1015; Thompson, Negligence, 452, note 3; Ill. Cen R. R. Co. v. Phelps, 29 Ill. 447; Bell v. Hannibal etc. R. R. Co., 72 Mo. 50; Holmes v. Railway Co., 37 Ga. 593; St. Louis etc. Ry. Co. v. Payne, 29 Kan. 166; East Tenn. etc. Ry. Co. v. Feathers, 10 Lea 103; Cordell v. N.Y. Cen. etc. Ry. Co., 64 N.Y. 468; Louisville etc. Ry. Co. v. Vittoes (Ky.), 41 S.W. 269; O'Donnell v. Railroad Co., 6 R. I. 211.

Such signals are not for the benefit of the employees in railway yards or at stations. Louisville etc. Ry. Co. v. Robertson, 9 Heisk. 276; Railroad v. Lee, 47 Ill. 384; Louisville etc. R. Co. v. Hall, 87 Ala. 708-718; Air Line R. R. Co. v. Gavitt, 92 Ga. 369-409; Blanchard v. Railroad Co., 126 Ill. 416; Bell v. Railroad Co., 72 Mo. 58; Evans v. Railroad Co., 62 Mo. 57; Bohback v. Railroad Co., 43 Mo. 187.

In the absence of an allegation that the persons in charge of the engine discovered, or by the exercise of ordinary care could have discovered, the respondent's peril in time to have avoided the accident, it was clearly error to admit evidence as to the distance at which such persons could have seen respondent. Galveston etc. Ry. Co. v. Harris (Tex.), 36 S.W. 776; Embry v. Louisville & N. R. Co. (Ky.), 36 S.W. 1123; Houston, E. & W. Ry. Co. v. Powell (Tex.), 41 S.W. 695.

Even in a case where there is a general charge of negligence, followed by a charge of negligence in the performance or non-performance of specific acts, the proof must be confined to such specific charge. Chicago etc. Ry. Co. v. Driscoll (Ill.), 52 N.E. 921; Ebersey v. Chicago City Ry. Co., 164 Ill. 518; McCarty v. Rood Hotel Co., 144 Mo. 397; Mitchel v. Prange, 110 Mich. 78; Plefka v. Knapp, 145 Mo. 316.

It is well settled that instructions must be based upon, and applicable to the pleadings and the proofs. Konold v. R. G. W. Ry. Co., 21 Utah 379.

If an instruction assumes the possibility of a material fact which is not pleaded, or of which there is no evidence, it is erroneous and should not be given. Walrath v. The State, 8 Neb. 81; Bowen v. Spaids, 26 Neb. 625; Farmers L. & T. Co. v. Montgomery, 30 Neb. 33; Galveston etc. R. Co. v. Harris (Tex.), 36 S.W. 776; Louisville & N. R. Co. v. Clark's Adm'r. (Ky.), 49 S.W. 323; Railroad Co. v. Eason (Tex.), 35 S.W. 208; Claibome v. Chesapeake & O. Ry. Co. (W. Va.), 33 S.E. 262; Mo. K. & T. Ry. Co. v. Hunt (Tex.), 47 S.W. 70; Gulf etc. R. Co. v. Barnett (Tex.), 47 S.W. 1029; Barnett v. Cavanaugh, 56 Neb. 190; Railroad Co. v. Houston, 95 U.S. 597 (L. Ed. Book 24, 542); 11 Ency. P. & P., 158-165, and authorities there cited.

An appellate court will not hold a charge which submits an issue not raised by the pleadings or evidence, harmless, unless it clearly appears that it was not calculated to in any manner influence the jury. Austin & N.W. R. Co. v. Flannagan (Tex.), 40 S.W. 1043; McCook v. Kemp (Kan.), 59 P. Rep. 1100.

W. R. White, Esq., and Lindsay R. Rogers, Esq., for respondent.

The appellant complains because the court gave instruction No. 6. The evidence on this point is that defendant's engineer and fireman had an opportunity to watch out for section men known at this time of the year to be on the switch, and especially on this windy day, and that for more than two hundred and fifty yards they could have seen plaintiff by looking. It is not necessary to show that they actually did see plaintiff, and in that, they were at fault for not watching out, as the Supreme Court of California said, "It is only necessary to prove that they had a clear opportunity and that it was their duty to watch out and observe." This instruction has been decided to be correct in the following well considered cases. Hall v. Ry. Co., 13 Utah 243; Thompson v. S. L. City, 16 Utah 281; Shaw v. R. R. Co., 21 Utah 76; R. R. Co. v. Kasson, 49 Ohio St. 230; Essy v. R. R. Co., 103 Cal. 541.

BASKIN, J. BARTCH, J., concurs. MINER, C. J., dissenting.

OPINION

BASKIN, J.

--This is an action in which the respondent seeks to recover for injuries alleged to have been caused by the negligence of the appellant. The answer denies the alleged negligence, and alleges that "whatever injury the respondent did sustain was caused by his own carelessness." The sixth instruction given by the court is as follows: "The jury are instructed that, even if they find from the evidence that the plaintiff was guilty of negligence which contributed to the injuries he complains of, yet he would be entitled to recover against the defendant if the jury should further find that the defendant, after discovering the plaintiff's negligence, failed or neglected to use reasonable diligence or care to prevent accident or injury to the plaintiff, but went ahead wantonly or recklessly, and injured him. It is the law that the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent is considered solely responsible." The seventh instruction is as follows "The jury are instructed that it was the duty of the defendant in the running of its engine to keep a reasonably careful lookout and watch for appearance of persons upon its track, and, when observed and seen, to warn them of its engine's approach by sounding the engine whistle, or ringing its bell, or other suitable signal of warning; and if, after doing so, the person so upon its track fails to heed the signal and remains thereon, then it would become the further duty of the defendant to make reasonable efforts to stop its engine, providing it could do so without danger to the persons upon it or injury to its engine, and thus avoid injury to the person upon its track; and if the defendant should fail to perform this duty, and should wantonly and carelessly run its engine upon or into such person, injuring him, it would be guilty of negligence." The appellant excepted to the sixth instruction in the following terms: "The defendant also excepts to the giving of paragraph No. 6, given by the court on its own motion, and especially to that part of it which states that if the jury should find that the defendant, after discovering the plaintiff's negligence, failed or neglected to use reasonable diligence or care to prevent accident or injury to the plaintiff, but went ahead wantonly or recklessly and injured him, the defendant would be liable, for the reason that there is absolutely no evidence to show that the defendant's agents or servants discovered the plaintiff in time to use any means to prevent the accident, or to have given the plaintiff any warning, and the entire instruction is therefore unwarranted under the evidence. And, further, excepts especially to the last sentence of this instruction, as follows: It is the law that the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible,' for the reason that this part of the instruction is wholly inapplicable to the case as made, and there is no evidence to justify or warrant its being given to the jury, or submitting to the jury the question of which of the parties may have had the last opportunity to avoid the accident." The seventh instruction was excepted to on the same grounds. We think that the court correctly stated the law in said instructions, and, if there had been any evidence upon which to base them, it would not have been error to give them. The record contains no evidence tending to show that the appellant, after discovering the respondent on the railroad track, negligently neglected or failed to use due and reasonable care to prevent the injury received by plaintiff, but went ahead recklessly and wantonly, and injured the plaintiff. On the contrary, the record contains evidence which tends to show that the servants of the appellant in charge of the locomotive which struck and injured the plaintiff did not, owing to the drifting of snow, which obscured the view, see the respondent until the locomotive was thirty feet from him, and after it was too late to prevent the injury. Instructions which are not based upon the evidence adduced are erroneous, unless they are of such a character as not to influence the jury. The instructions in this case are not of that character. "In actions of negligence, as in other actions, the proof must conform to the pleadings. Accordingly, recovery cannot be had on proof of other acts of negligence than the specific acts alleged in the complaint." 14 Ency. Pl. and Prac. p. 342; Ohlenkamp v. Railroad Co., 24 Utah 232, 67 P. 411. Under the instructions the jury may have found that the defendant saw the plaintiff in time to avert the injury, and, after so seeing him, went ahead wantonly and recklessly, and injured...