Dahlquist v. Denver & R.G.R. Co.

• Decision Date: 04 May 1918
• Docket Number: 3049
• Citation: 174 P. 833,52 Utah 438
• Parties: DAHLQUIST v. DENVER & R. G. R. CO
• Court: Utah Supreme Court

174 P. 833

52 Utah 438

DAHLQUIST v. DENVER & R. G. R. CO

No. 3049

Supreme Court of Utah

May 4, 1918

On Application for Rehearing August 20, 1918.

Appeal from the District Court of Salt Lake County, Third District Hon. T. D. Lewis, Judge.

Action by A. Dahlquist against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED and remanded, with directions.

VanCott Allison & Riter for appellant.

Marioneaux Straup, Stott & Beck and M. E. Wilson for respondent.

CORFMAN J., THURMAN and McCARTY, J.J. McCARTY, J., THURMAN, J., concurring. FRICK, C. J., concurring in part and dissenting in part. GIDEON, J., dissenting.

OPINION

CORFMAN, J.

This was an action brought in the district court of Salt Lake County to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the employ of the defendant as a railroad brakeman. In substance, the complaint alleges that on the 11th day of March, 1915, while the plaintiff was in the employ of the defendant as a rear brakeman on an inter-state freight train, he was directed at Thistle, Utah by the conductor in charge of said train, to assist in switching a certain car from the defendant's main line to a side track, and while acting in obedience to said order was jerked off the car on which he was required to go, and was injured by reason of the careless and negligent manner in which an incompetent engineer operated the engine and train. The answer denies negligence, and affirmatively alleges that the regular engineer placed in charge of the engine left it to go to an eating house for his meal, and in his absence the conductor of the train, without right or authority, and without instructions from the defendant, proceeded to take charge of the engine and operate it in doing the switching at the time and place plaintiff was injured; that although the conductor was competent to handle the engine, and did handle it competently and carefully, his acts in so doing were contrary to defendant's instructions and wholly outside the scope and course of his employment. Trial was to a jury resulting in a verdict and judgment for the plaintiff. Defendant appeals.

The numerous errors assigned on appeal are directed to the rulings of the trial court in admitting and excluding evidence, in denying defendant's motion for a nonsuit and for a directed verdict, and the giving of certain instructions to the jury.

The facts, in brief, as disclosed by the testimony, are that the plaintiff was, at the time of the accident of which he complains, an experienced railroad brakeman in the employ of the defendant engaged in the duties of a rear brakeman on a freight train engaged in interstate commerce. The train crew consisted of the plaintiff, as rear brakeman, a head brakeman, conductor, fireman, and an engineer. The train, consisting of about seventy-five cars, was being moved westward from Helper to Salt Lake City. The train arrived at Thistle, the at about nine o'clock a. m. Before arriving at Thistle, the conductor had received orders to set a car out of the train at that station and leave it upon a siding for transportation over another branch of defendant's railroad. The conductor communicated his orders to the brakeman. Immediately on the arrival of the train at Thistle, the engineer and fireman proceeded to vacate the engine and go to a nearby eating house for their breakfast. Meanwhile, in the absence of the engineer and fireman, without the knowledge of the plaintiff, the conductor mounted the engine and began operating it in the cutting out of the car to be left at Thistle, and switching it from the defendant's main line to the side track where it was to be left. The testimony further shows that the signals given in this switching process were first given by the conductor in charge of the engine to the head brakeman, and by him communicated to the rear brakeman, the plaintiff, who was not in a position to see the conductor on the engine. In the movement of the train of cars by the engine a violent backward jerk of the car occurred on which the plaintiff was required to go in order to do his work, causing him to break his hold upon the ladder at the side and fall to the track, where the wheels ran over his leg and inflicted the injuries of which he complains. There is very little conflict in the evidence, except as to whether or not the engine was negligently handled by the conductor. There is substantial evidence in the record that tends to show the conductor was negligent in that regard.

The principal errors assigned by defendant on appeal go to the question whether or not, as a matter of law, the defendant is liable to the plaintiff for the injuries he sustained while the conductor was thus operating the engine in the absence of the engineer.

It must be conceded from the testimony given in this case that, both in actual practice and under the rules of the defendant company, the only person who could rightfully operate the engine was the engineer. Rule 443 of the defendant company provides:

"While switching, engineer and fireman must remain on the engine and must exercise great care in handling the engine while yardmen or trainmen are making couplings, and also give close attention to signals."

The engineer testified:

"Under the company's instructions and rules and regulations, at that time it was my duty to operate the engine, and nobody's else."

The plaintiff himself testified:

"I know that the conductor had no right to run the engine. I know that Conductor Clifford, on that occasion, had no right to operate that engine."

The conductor testified:

"I had no excuse at all for operating the engine; none whatever. It was a responsibility I assumed myself. It was an utter disregard of the orders of the company, without any reason whatever."

It is therefore contended by the defendant that the conductor of the train was operating the engine at the time of the accident in question without any authority from the defendant and beyond the scope and the duties of the employment.

It becomes important, in view of the foregoing testimony and the contention made by the defendant, that we take into consideration the effect of certain other rules offered in evidence bearing upon the functions of the conductor and the scope of his duties while in charge of defendant's train. They provide:

Rule 334 (with respect to freight conductors). "They will be held responsible for the conduct of all persons employed on their trains, and must report any misconduct or neglect of duty."

Rule 315. "Station work should be done immediately on arrival."

Rule 317. "Conductors will comply with instructions of agents in placing cars and doing other station work. If necessary to move cars for loading or unloading, they must be replaced."

Rule 204. "Train orders must be addressed to those who are to execute them, naming the place at which each is to receive a copy. Those for a train must be addressed to the conductor and engineer, and also to any one who acts as its pilot. A copy for each person addressed must be supplied by the operator. Orders addressed to operators respecting the movements of trains must be respected by conductors and engineers the same as if addressed to them."

The trial court, in the face of the foregoing uncontradicted testimony, denied defendant's motion for a nonsuit and also a motion for a directed verdict in defendant's favor, and proceeded at the conclusion of the testimony to instruct the jury as follows:

"The court instructs you as a matter of law that under the undisputed evidence in this case the conductor stood in such relation to the train and the engine that his acts must be deemed to be the acts of the defendant company. In handling the engine himself he was violating his duty to the company, but his act was nevertheless the act of the company. You are therefore instructed that, if you find from a preponderance of the evidence that the plaintiff's injuries were caused by the negligence of the conductor in the manner of his stopping the train at the time of the accident, the defendant company must answer in damages to the plaintiff, notwithstanding the fact it had forbidden its conductors to operate its engine."

Under the facts and circumstances disclosed by the record on this appeal, we are of the opinion that the rulings of the trial court in denying defendant's motion for a nonsuit and for a directed verdict, and the giving of the foregoing instruction to the jury, over the defendant's objection, are to be sustained, both on principle and authority.

While the testimony shows that the act of the conductor in operating the defendant's engine was in disobedience of the instructions and rules of the defendant company, yet it appears that the nature of his employment was such that at all times it became his duty as a representative of the defendant to answer "for the conduct of all persons employed on the train"; that, while under the defendant's rules it was the duty of the engineer and fireman to remain upon the engine when the train crew was engaged in switching cars, the train was to be run under the directions of the conductor. The defendant's rules required the conductor to see to it that "station work was done immediately on arrival" of the train, and "conductors will comply with instructions of agents in placing cars and doing other station work," and in doing so he is to be held responsible for the safety of the train.

It would be difficult to conceive of circumstances under which the master could more justly be held to answer for the negligent act of the employee than in the case at bar. The acts of the plaintiff and every other member of the train crew were under...