Farnsworth v. Union Pac. Coal Co.

• Decision Date: 18 March 1907
• Docket Number: 1808
• Citation: 32 Utah 112,89 P. 74
• Court: Utah Supreme Court
• Parties: FARNSWORTH v. UNION PAC. COAL CO

89 P. 74

32 Utah 112

FARNSWORTH v. UNION PAC. COAL CO

No. 1808

Supreme Court of Utah

March 18, 1907

APPEAL from District Court, Summit County; George G. Armstrong Judge.

Action by Don Farnsworth against the Union Pacific Coal Company. Judgment for plaintiff. Defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith and Jno. G. Willis for appellant.

T Marioneaux and Evans & Evans for respondent.

RESPONDENT'S POINTS.

We contend that if the appellant proposes to rely in any case, at law or in equity, upon the claimed insufficiency of the evidence to justify the verdict, he must embody in his bill of exceptions a specification of the particulars in which the evidence is alleged to be insufficient. '(Rule 26, S.Ct. Utah, Sess. Laws 1903, p. 33; Van Pelt v. Park; 18 Utah 141; Canal Co. v. Edwards, 9 Utah 477; Sterling v. Parsons, 9 Utah 81; Gill v. Hecht, 13 Utah 5; Marks v. Taylor, 23 Utah 470; Genter v. Mining Co., 23 Utah 165.)

Where the injury concerns the rights in personal property, the venue may be laid in any county where defendant may be found. (Mastyn v. Fabrigas, 1 Cowp. 601; Rafael v. Verelst, 2 Wm. Bl. 1058; Glen v. Hodges, 9 Johns. [N.Y.] 67; Gardner v. N.Y. & C. Ry. Co., 17 R. I. 790; McLeod v. Conn. & C. Ry. Co., 58 Vt. 727, 6 A. 648.) The fact that both plaintiff and defendant are non-residents is immaterial to jurisdiction of subject-matter. (Miller v. Black, 2 Jones L. [N. Car.] 341; Walters v. Breeden, 3 Jones L. [N. Car.] 64; Eingartsan v. Ill. Steel Co., 94 Wis. 70; Furbish v. Nye, 17 A.D. 325.)

One alien may sue another in a State court. (Roberts v. Knights, 7 Allen [Mass.] 449; Peabody v. Hamilton, 106 Mass. 217; Barrell v. Benjamin, 15 Mass. 354; Johnson v. Bull, 17 Wend. [N.Y.] 323; Burdick v. Freeman, 120 N.Y. 420, 24 N.E. 949.)

A defendant can waive his right, under the Constitution, to have an action against him tried in the county where the cause of action arose; so that, even if it were conceded that the cause of action in the case at bar arose in Carbon county, the defendant waived its right to have the case tried there both by failing to object to the jurisdiction of the court at the former trial and by demurring to the amended complaint on the sole grounds specified in its demurrer. (Railway v. McBride, 141 U.S. 127, 11 S.Ct. 982, 35 L.Ed. 659; Railway v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829; Trust Co. v. McGeorge, 161 U.S. 129, 14 S.Ct. 286, 38 L.Ed. 98; Construction Co. v. Gibney, 160 (U.S.) 217, 16 S.Ct. 272, 40 L.Ed. 401; Putney v. Collins et al., 3 Grant. Cas. 72; Fennell v. Guffey, 155 Pa. 38, 25 A. 785; Kenney v. Greer, 13 Ill. 432-449, 54 Am. Dec. 439; Railroad v. Solomon, 23 Ind. 534; 160 U.S. 219; 16 S.Ct. 272, 40 L.Ed. 401.)

A general exception to an instruction will not raise the question of its completeness. (Hamilton v. Railroad, 17 Mont. 334.) An exception that a charge is bad as tending to prejudice the jury should point out the particular in which it is prejudicial. (State v. Verner, 115 N. Car. 744; Nebeker v. Harvey, 21 Utah 374; Coal Co. v. Ingraham, 70 F. 219; Pool v. Southern Pacific Co., 20 Utah 210; Brigham City v. Crawford, 20 Utah 130; Wilson v. Mining Co., 16 Utah 91, 99; People v. Hart, 10 Utah 204; Lowe v. Salt Lake City, 13 Utah 91, 99; Beeman v. Mining Co.. 23 Utah 145; Haun v. Railway Co., 22 Utah 351; Whipple v. Preece, 24 Utah 372; State v. King, 24 Utah 482.)

It is elementary that the servant assumes the ordinary risks of his employment, but where the place of work is unreasonably and unnecessarily dangerous, as a result of negligence on the part of the master, the risks arising therefrom have never been considered the usual and ordinary risks of the employment. And if the master contends that such risks have been assumed, it is incumbent upon him to plead and prove such assumption of risk. See the following authorities: Sankey v. Railroad, 118 Iowa 39; American Car Co. v. Clark, 32 Ind.App. 644; Mining Co. v. Difentholer, 32 Colo. 391; Railroad Co. v. Swenington, 122 F. 193, 196 U.S. 326; Railroad v. Tracey, 66 F. 931; Nicolaus v. Railroad, 90 Iowa 85, 57 N.W. 694; Mayers v. Railroad, 63 Iowa 562, 14 N.W. 340; Hudson v. Railroad. 104 N.C. 491, 10 S.E. 669; Price v. Railroad, 85 S.W. 858; Com. Elec. Co. v. Rice, 73 N.E. 780; Mace v. Bodeker & Co., 104 N.W. 475; McDonald v. Champ, I & S. Co., 103 N.W. 829; Laundry Co. v. Crawford, 93 N.W. 177; Decker v. Nor. Pac., 68 P. 426; Faulkner v. Mining Co., 66 P. 799; Thompson v. Railroad Co., 72 N.W. 962; Lloyd v. Haines, 35 S.E. 611; Walker v. McNeil, 50 P. 518.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action for damages for personal injuries sustained by respondent, arising out of alleged negligence on the part of appellant. The alleged negligence consisted in, and the evidence tended to establish, that appellant permitted a projection of coal or rock to exist in and to extend across the roof of the incline leading from the surface to the mine below, and in which appellant's coal cars were being operated in transporting coal, as mined from the mine, to the surface above. The incline was dark, and the cars were being operated at a speed stated to be from twenty to twenty-five miles an hour. It was respondent's duty to ride on or between two of a string of cars loaded with coal passing from the mine to the surface, and, in case anything was or became wrong on the trip up with any one of the train of cars, he was required to signal the operator at the surface by means of wires strung along the side of the incline at or near the roof to have the operator stop the cars. On the day of the accident the respondent was at his post of duty, standing in a stooping position on the projecting floors between two cars, and, something becoming wrong with one of the cars immediately after starting, he arose from his stooping position, and with what is called a "ringer," with which he was provided for the purpose, attempted to signal the operator while the cars were moving at the speed aforesaid, when his head came in contract with the sharp edge of the projection in the roof which extended downward about eleven inches from the face of the roof in the form of what may be called a "saw tooth," and he was thrown from the cars and sustained serious injuries. It further appeared that respondent was ignorant of the projection in the roof and that appellant knew, or, by the exercise of ordinary care as master, could have known, of it and the danger incident thereto. All acts of negligence were denied on the part of the appellant, and contributory negligence and assumption of risk were pleaded. Upon substantially the foregoing issues and facts the jury found for respondent by their verdict, upon which the court entered judgment for respondent, from which this appeal is prosecuted.

One of the errors assigned arose as follows: It appeared from the complaint that the respondent was a non-resident of this state and a resident of Wyoming, and that the appellant was a foreign corporation, to-wit, a corporation of the state of Wyoming. But it did not appear from the complaint that appellant had any place of business or office in this state, nor whether it carried on any business in this state or not. The appellant appeared in the action and filed a general demurrer, challenging the sufficiency of the complaint, in which one of the grounds of demurrer was that "the court has no jurisdiction of the subject-matter of the action." This demurrer was overruled, and the appellant answered, in which it set up as a defense facts showing that it was a foreign corporation with its principal place of business in this state at Salt Lake City, and that it had no place of business in Summit county, where the action was brought, and that the accident occurred and the cause of action arose in Wyoming. Before entering upon the trial on the merits, when a jury was about to be impaneled, the appellant, by its counsel, suggested its willingness to prove the facts last above stated; but the court held that it had jurisdiction of the subject-matter of the action and of the person of appellant--the latter, presumably upon the ground of its general appearance by filing a general demurrer to the complaint.

The first error assigned is the ruling of the court in respect to assuming jurisdiction. The alleged error is based upon section 1, c. 92, p. 76, Laws of Utah 1903, where it is, in substance, provided that transitory causes of action arising without this state in favor of nonresidents and against corporations shall be brought in the county where such corporation has its principal place of business. Assuming for the purpose of this decision, that a foreign corporation is included within the provision referred to, did the court err in assuming jurisdiction of the action in view of the state of the record? The appellant certainly submitted itself to the jurisdiction of the court by its appearance in filing a general demurrer in which it invoked the judgment of the court in respect to the sufficiency of the complaint. (Section 3334, Rev. St. 1898.) It did not appear from the complaint that appellant's, principal place of business was not in Summit county, where the action was brought. It did appear therefrom, however, that the appellant was a foreign corporation, carrying on a business in a foreign state, and that the cause of action arose in such foreign state and in connection with its business. When the appellant appeared, therefore, neither the court nor any one else connected with the action was concerned in where its principal place of business was, or if, in fact, it had any in this state at all. Had it been a domestic corporation, it would have to be assumed as a matter of course that it had a...