Drake v. Union Pacific Railway Company

• Decision Date: 11 March 1889
• Parties: DRAKE v. UNION PACIFIC RAILWAY COMPANY
• Court: Idaho Supreme Court

21 P. 560

2 Idaho 487

DRAKE v. UNION PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

March 11, 1889

MASTER AND SERVANT-RULE OF DAMAGES.-Where a fireman upon a locomotive engine in discharge of his duty, with full knowledge of the nature and extent of the dangers of the service he is engaged in, or has the means of being informed of such facts and conditions by the exercise of ordinary care, voluntarily assumes such risks, and is thereby injured and the employees are guilty of no laches or misconduct unknown to the servant, or which with ordinary care he might have known, he cannot recover for such injury.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Judgment reversed, and a new trial granted.

P. L Williams and W. H. Savidge, for Appellant.

An instruction is vicious which ignores a qualification which the evidence tends to prove. (Railway Co. v. Rector, 9 Am. & Eng. R. R. Cas. 265, 269.) A railway company is not held to be an insurer of the safety of its employees even as to the agencies within its control; a fortiori, it ought not to be held to this rule as to agencies without its control. (Railway Co. v. Fowler, 8 Am. & Eng. R. R. Cas. 504, 509; Pierce on Railroads, 379, cases cited; Gibson v. Railway Co., 63 N.Y. 449, 20 Am. Rep. 5521; De Forest v. Jewett, 88 N.Y. 264; Wood on Master and Servant, sec. 382; Railway Co. v. Bresmer, 4 Am. & Eng. R. R. Cas. 647, 650.)

Smith & Smith and R. D. Winters, for Respondent.

Under the evidence, as introduced, it was the duty of the court to submit the question of defendant's negligence to the jury. (Jones v. Railway Co., 128 U.S. 443, 9 S.Ct. 118; Kane v. Railway Co., 128 U.S. 91, 9 S.Ct. 16; Hough v. Railway Co., 100 U.S. 224; District of Columbia v. McElligott, 117 U.S. 621, 6 S.Ct. 884.) The defendant was bound to keep its track in safe condition, and to use all reasonable means to keep obstructions off the track, and to discover any that may by chance get thereon, and remove them. (Wilson v. Railway Co., 15 Am. & Eng. R. R. Cas. 192; Illinois Cent. Ry. Co. v. Welch, 52 Ill. 183, 4 Am. Rep. 593; Railway Co. v. Gregory, 58 Ill. 272; Chicago etc. Ry. Co. v. Russell, 91 Ill. 298, 33 Am. Rep. 54; Fifield v. Railway Co., 42 N.H. 225; Dorsey v. Construction Co., 42 Wis. 583.) This action was maintainable, and was properly brought in Idaho for liability arising under the statute of Wyoming. (Dennick v. Railroad Co., 103 U.S. 11.)

BERRY J.

OPINION

BERRY, J.

This is an appeal from the district court of the third judicial district, Bear Lake county, tried by a jury at the July term, 1888, Honorable Case Broderick, district judge, presiding. The action is brought by the plaintiff as administrator of one Fred. S. Drake, deceased, who was killed in an accident on the Oregon Short Line Railway, one of the lines of the defendant, at a point near Ham's Fork, in Wyoming territory, January, 28, 1887. The complaint alleges that the deceased was employed by the defendant at the time as a fireman on one of its locomotive engines; that at the place of the accident "the track of the said road was out of repair, and unfitted for the passage of trains, by reason of ice and snow, which the defendant had negligently permitted to remain on the track"; that the defendant, with knowledge, etc., willfully and carelessly ran its train and engine over said track, whereby the deceased, without fault on his part, was killed; that the deceased was ignorant of the condition of said track, or that it was out of repair, or unfit for use. The plaintiff demands judgment as administrator, and pleads the statute of Wyoming territory, where the accident occurred, as allowing recovery by an administrator. The answer of the defendant puts in issue each allegation of the complaint. On the trial, when the evidence on the part of the plaintiff was closed, and the plaintiff had rested his case, the defendant moved for a judgment of nonsuit, under section 4354 of the Statutes of Idaho, subdivision 5, on the ground that the plaintiff had failed to prove a sufficient case for the jury. The motion was denied, and the defendant excepted.

Certain requests were made by the defendant to the court to charge the jury (which requests will hereafter be referred to more at length), each of which was refused by the court, and to which refusal the defendant duly excepted. The court delivered its charge to the jury, which was also excepted to by the defendant, as will more fully appear, and the jury found a verdict for the plaintiff in the sum of $ 3,000. A bill of exceptions and a case were duly settled and allowed, and upon which a motion was made for a new trial, which motion was denied, and judgment on said verdict was entered for plaintiff; and the defendant appeals from such order of refusal and from the judgment to this court.

The first point of the appellant is that the court erred in refusing judgment of nonsuit. That motion was based upon the want of evidence, and the ground is taken that the evidence did not show such a state of facts that the jury could find the defendant liable. It is stipulated that the case before us contains all the evidence. A review of this point involves an examination of the facts of the case. There is little or no conflict between the witnesses on any material point. Stated as strongly for the plaintiff as the evidence will warrant, they are about as follows: The deceased is alleged in the complaint to have been at the time of the accident in the employ of the defendant as fireman on one of its locomotive engines; and the evidence shows that this employment was on and over this division of the road, on its regular trains, and that he had been so employed for some years; that he ran between Montpelier, in Idaho, and Granger or Green River, in Wyoming territory, with his head-quarters at Montpelier, and on each trip passed over the place of the accident; that the train on which he was regularly employed and running was stopped, either the day of the accident or the preceding day, while going east, in consequence of the snow on the track, and difficulty of running, in consequence of the drifted condition of the roads, at a station called Fossil, about ten miles west of the place of the accident; that other trains, from both directions, had stopped there, and the running of regular trains had been practically suspended, since early in the morning of the accident; that at 12:15 P. M. of that day a special train was made up of passenger cars, to be drawn by two engines, the train so made up being what is known as a "double-header," to be sent from Fossil east over this line, both to forward the train, and also thereby open and clear the track of the drifted snow; that the second engine was the one on which the deceased was accustomed to run,...