Everett v. Oregon Short Line & Utah Northern Railway Co.

• Decision Date: 30 August 1893
• Citation: 34 P. 289,9 Utah 340
• Court: Utah Supreme Court
• Parties: GEORGE EVERETT, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

34 P. 289

9 Utah 340

GEORGE EVERETT, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

August 30, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane judge. The opinion states the facts, except that the third instruction referred to in the opinion was as follows:

"Even if the plaintiff was on the caboose in bad faith, without having paid his fare, or trying to beat his way, in violation of the rules of the company and knew it, still if he was injured by defendant's agents recklessly running cars against the caboose, when they had reason to know that plaintiff might be injured thereby, that would amount to gross negligence and plaintiff could recover, but not for ordinary negligence under the same circumstances."

The testimony that was excluded was as follows: A written stipulation had been entered into to the effect that if one Slattery were present as a witness he would testify "that the train men were negligent in causing the train to strike against the caboose as violently as it did," and if present would also testify to the facts set forth in the affidavit of P. L. Williams, and "such testimony is hereby stipulated to be read and considered in evidence." Then the affidavit of P. L. Williams was read in evidence, and upon objection made to the statement therein, "I supposed he was a car-repairer," it was excluded as immaterial.

Affirmed.

Messrs Williams and Van Cott, for the appellant.

It was error for the court to exclude the testimony of witness Slattery, because it was stipulated that such testimony might be considered and read in evidence. Keys v. Warner, 45 Cal. 60; Dreyfous v. Adams, 48 Cal. 131. Outside the stipulation the testimony was admissible in order to explain why the trainmen did not interfere with the respondent when he was seen in the caboose. Railway Co v. Nichols, 12 L. A. R. 475 (9 Kans.). The court made the right of plaintiff to recover to depend upon his good faith, but the question was whether or not he was a passenger, and this was irrespective of his good faith. Patterson Railway Acc. Law, secs. 211, 215. Powell v. Railway Co., 8 So. Rep. 738; Railway Co. v. Nichols, supra. The court adopted a theory in charging the jury, that was not raised by the pleadings, and this was error. Railway Co. v. Mehlsack, 131 Ill. 61.

The appellant requested the court to charge as to whether or not the brakeman could make the respondent a passenger. This was refused, and was erroneous. Waterbury v. Railway Co., 17 F. 671. Eaton v. Railway Co., 57 N.Y. 322; Flower v. Railway Co., 69 Pa. 210; Railway Co. v. Michie, 83 Ill. 427; Robertson v. Railway Co., 22 Barb. 91; Snyder v. Railway Co., 60 Mo. 413; Darwin v. Railway Co., 55 At. Rep. 32; Powers v. Railway Co., 26 N.E. 446. The respondent could not be held to be a passenger and hence could not recover. Mc Veety v. Railway Co., 47 A. and E. R'y Cas. 471, and cases above. The whole question of gross negligence was entirely out of the case and was improperly submitted to the jury.

Messrs. Ferguson and Cannon, for the respondent.

BARTCH, J. MINER, J., concurred.

OPINION

BARTCH, J.

The plaintiff in this case claims damages for personal injuries, alleged to have been received while a passenger on defendant's train at North Salt Lake. The jury rendered a verdict in his favor for the sum of $ 4,500, and, upon judgment being entered for that amount, the defendant appealed to this court. The evidence shows substantially that the plaintiff had been in the employ of the defendant, as section hand and section foreman, for a period of about eight years, and on the day of the accident was so in its employ, as section foreman, at the city of Ogden, Utah; that on that day he received word from his family, who resided at Salt Lake City, that several of his children were sick with diphtheria, and were quarantined; that, after he quit work in the evening, it being about dark, and, being too late for defendant's passenger train, he went to a freight train, where he saw a man with a lantern, who told him that he was the conductor; that, after giving this man a dollar to be allowed to ride on the train to Salt Lake City, he assisted plaintiff into a box car, partially filled with brick, claiming that the caboose was full; that in this car he rode to North Salt Lake, where the same man helped him out and into the caboose; that after he was in the caboose the conductor and two other employes came in, but made no objections to his being there; that, shortly after the conductor and employes went out of the caboose, the switch engine ran freight cars against it, without giving any signal, and with such force as to produce a violent shock, which caused the injuries complained of; that, after the collision, the employes re-entered the caboose, and found the plaintiff lying on the floor, stunned and seriously injured; that it had been the custom of defendant to carry passengers on freight trains, except on extra freight trains, and on these passengers could be permitted to ride by the train dispatcher, but plaintiff did not know he was on an extra train; that the fare on passenger trains from Ogden to Salt Lake City was $ 1.75, but plaintiff claims he did not know the fare on freight trains.

It was admitted on the trial that the engineer of the switch engine and the other employes in the train, if present, would testify "that they were negligent in causing the train in question to strike against the caboose as violently as it did." In view of the facts and circumstances thus proved on the trial, the court, in the course of its charge, instructed the jury as follows: "If you believe, from a preponderance of the evidence that the plaintiff was in the car, commonly called the 'caboose,' of the defendant, at North Salt Lake, and that he was there in good faith, and under circumstances authorizing him to believe that he was there lawfully, and that he had a right to ride in the caboose, and that he was without fault, and that the defendant was guilty of negligence, which caused the injury to him, then you should find a verdict for the plaintiff. On the contrary, if you find that the plaintiff's negligence in any degree contributed to the injury, then you should find a verdict for the defendant."

Counsel for appellant insist that the material question in this case is as to whether plaintiff was a passenger, and that this instruction, to the effect that if he was in the caboose in good faith, and believed he was lawfully there, and had a right to ride there, etc., was erroneous, and presented an immaterial issue to the jury. If it were conceded that he was not lawfully in the box car, could it be said that he was not lawfully in the caboose? He was there with the knowledge of the conductor who had charge of the train. If this was an extra train, on which passengers were not allowed to ride, it was the conductor's duty to inform him, and request him to leave in accordance with the regulations of the defendant; and, if plaintiff had disregarded such request, the conductor could have lawfully removed him, using no more force than was necessary for that purpose. The conductor failing to do this, it must be presumed that the plaintiff was rightfully there. A railroad company has a right to designate which of its freight trains shall carry passengers, and which shall not. It has a right to make regulations, and when so made, they are binding on its servants. Those riding on its trains are not presumed to know them. If its servants neglect or violate them, and, because of such neglect or violation, injury results to strangers, the company will be liable. It employs its servants, and has the power of removal, and the law is that the principal is bound by the acts of his agents. His liability does not necessarily arise because of any contract or privity between him and the party injured, nor is it affected by any relation existing between the parties.

It is true, in many instances such liability is founded on contract, as where a traveler, by stage coach, is injured through the negligence of the driver, or where the owner of a public conveyance undertakes to carry persons or property, and injury results through the negligence of his agents. Here an action will lie against the owner founded on contract. Then there are numerous other cases where an action will lie against the principal for injury, caused by the negligence of his servant, wholly irrespective of any contract; as where one is lawfully on the highway and a servant carelessly drives a vehicle against him, and injures him. And, generally, the master is liable for the negligence of his...