Konold v. Rio Grande Western Railway Co.

• Citation: 21 Utah 379,60 P. 1021
• Court: Supreme Court of Utah
• Decision Date: 21 April 1900
• Parties: RUDOLPH KONOLD, RESPONDENT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

60 P. 1021

21 Utah 379

RUDOLPH KONOLD, RESPONDENT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

April 21, 1900

Appeal from the Seventh District Court, Emery County, Hon. Jacob Johnson, Judge.

Action for the recovery of damages for personal injuries sustained by plaintiff while in the employ of defendant, alleged to have been caused by the explosion of a defective boiler which plaintiff, in the discharge of his duties, was engaged in using, and of which defects the defendant was, but the plaintiff was not, aware. From a judgment for plaintiff defendant appealed. Reversed.

Reversed and remanded.

Messrs Bennett, Harkness, Howat, Bradley & Richards, for appellant.

It was the duty of plaintiff to observe all rules and regulations for his guidance in running the train, and he could not substitute his judgment for that of his employer, and it is not the province of the jury to substitute their judgment for that of the superintendent of the road, charged with the duty of making and promulgating rules for the safe operation of the road. Railroad Co. v. Mothershed, 20 So. (Ala.) 67-69.

The negligent acts of the agent, or of other agents at other times, in no way connected with the time in controversy, is not admissible. Maguire v. Middlesex R. Co., 115 Mass. 240; First N. Bank v. Ocean N. Bank, 60 N.Y 278, 295; Eskridge Exr. v. Ry. Co., 12 S.W. (Ky.), 580; Couch v. Charlotte, etc., Co., 28 Am. & Eng. R. C., 331; Chicago, etc., R. Co. v. Hodge, 55 Ill.App. 166; Am. Dig., 1895, p. 3363, Sec. 342; Tribette v. Ry. Co., 13 So. (Miss.), 899; Mc Nally v. Colwell, 52 N.W. (Mich.), 70.

An employee who receives rules is obliged to conform to such rules according to the plain terms thereof, and not according to what may have been a customary practice of other employees, regardless of the express requirements of the rules. Gordy v. N.Y., etc., Ry. Co., 23 A. (Md.), 607.

The evidence that employees violated the rule, down on the desert between Helper and Grand Junction, was immaterial for any purpose, and the objection that it was immaterial should have been sustained. Snowden v. P. V. Coal Co., 16 Utah 366; Stoll v. Daly M. Co., 19 Utah 271; S.C., 57 P. 295.

Evidence showing that employees of a railroad company were accustomed to act in violation of a rule of the company is not admissible to establish a waiver of the rule, unless it be shown that the custom was known by the officer charged with the enforcement of the rule. O' Neil v. R. R. Co., 45 Iowa 546; Note 32 Am. St. Rep. 384; Louisville, & N. R. Co. v. Mothershed, 20 So. 67; Alabama, etc., R. Co. v. Roach, 110 Ala. 266, 20 So. 132; Spaulding v. Ry. Co., 98 Iowa 205, 67 N.W. 227.

It is error to give an instruction that may be abstractly correct, if there is no testimony upon which to predicate it. Michigan Bank v. Eldred, 9 Wall., 544; Equitable Co. v. Mc Elroy, 83 F. 631, 642; Snyder v. Will, 15 Pa. 59; Sartell v. Wilcox, 20 Pa. 116; American, etc., Co v. Moore, 5 Mich. 368, 380; Andreas v. Ketcham, 77 Ill. 377; Howe, etc., Co. v. Layman, 88 Ill. 39; Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657; Perkins v. Eckhert, 55 Cal. 400; Hess v. Wilcox, 58 Iowa 380; Kennedy v. Railroad Co., 36 Mo. 351; Birmingham, etc., Co. v. Walker, 28 S.E. (Ga.), 534; Manning v. Railroad Co., 17 N.W. 669.

The defendant was entitled to have the witness, Wille, state to the jury not only his opinion upon the subject, but to give his reasons therefor, and to state the experiments he had made, and the result thereof. Williams v. Taunton, 125 Mass. 34, 40; Eidt v. Cutler, 127 Mass. 522; Young v. Clark, 16 Utah 42, 52; Stockwell v. Railroad Co., 43 Iowa 470, 474; Missouri, etc., Ry. Co. v. Moffat, 44 P. (Kan.), 607, 609; Beckett v. N.W., etc., Assn, 69 N.W. (Minn.), 923; Mc Kay v. Lasher, 121 N.Y. 477, 483; Vietti v. Nesbit, 41 P. (Nev.), 151, 153; State v. Jones, 41 Kan. 309.

No presumption of negligence arises from the fact that the accident has occurred and the plaintiff has been injured thereby. Bailey's Masters' Liability for Injury to Servants, p. 508; Kuhns v. Railway Co., 31 N.W. 868; Curtis v. Railroad Co., 18 N.Y. 534; Knight v. Cooper, 14 S.E. (Va.), 999; Bryner v. So. P. Co., 90 Cal. 496; The W. H. Simpson, 80 F. 154; Spiers v. Railroad Co., 62 N.W. 68; Donovan v. Railway Co., 32 A. 350; Case v. R. Co., 21 N.W. 30.

The court erred in instructing the jury that they could allow the plaintiff for mental suffering, without stating or limiting the recovery to mental suffering that accompanied his physical suffering, and was dependent upon it. Railway Co. v. Spurrey, 2 Neg. Rep. (Ill.), 505; Railroad Co. v. Lamereux, 49 P. 152; Damson v. Railroad Co., 11 Am. & Eng. R. Cases, 134.

C. C. Richards, Esq., E. M. Allison, Jr., Esq., and H. R. Mac Millan, Esq., for respondent.

As the defendant was endeavoring to show that the plaintiff did not have sufficient time in which to run the train from Lower Crossing to Clift. Siding, and caused the explosion by working his engine and boiler too hard and neglecting to supply the boiler with the necessary water, so that he could run the train faster than he ought and reach Clift. Siding in time to side track before the passenger train came along, it was competent, material, and relevant to the issues, for the plaintiff to show the printed time cards as admissions of the defendant that identically the same kind and class of trains were run by the defendant with the same class of engines, over the same rails, in the same direction, both before and since the explosion, and indeed in less time than the plaintiff has, by either his own testimony or by Mr. Allen's testimony. Ry. v. Spilker, 32 N.E. 285; Ry. Co. v. Selby, 47 Ind. 494, 495; Shaber v. Ry. Co., 28 Minn. 103; Sheldon v. Ry. Co., 14 N.Y. 218; Field v. Ry. Co., 32 N.Y. 339.

The court did not err in receiving the testimony of the witness Konold, relative to the practice of station agents in recording the time of the departure of trains. Bailey v. Rome Ry. Co., 30 N.E. 918; W. U. T. Co. v. Hearne, 26 S.W. 478; Bennis v. Temple, 38 N.E. 970; N.Y. C. R. Co. v. Zambaugh, 38 N.E. 531; Salem Co. v. Griffin, 38 N.E. 411; Slea v. Glendall Co., 38 N.E. 1123; Chicago R. Co. v. Spilker, 33 N.E. 280-285; International R. Co. v. Kuehn, 21 S.W. 58, 62; Harrell v. Albemarl R. Co., 14 S.E. 687; Legg v. City of Blumefield, 40 Ill.App. 186; 1 Wharton on Evidence, Sec. 40-43; Railway v. Richardson, 91 U.S. 454; Shaber v. Railway Co., 28 Minn. 103.

It was not error for the court to admit testimony showing the practice on defendant's road and the abrogation of certain rules. Strong v. Iowa Cent. R. Co., 62 N.W. 801, 802; Lowe v. Railway Co., 56 N.W. (Iowa), 521, where the question is fully considered. Horan v. Railway Co., 56 N.W. 508.

The court did not err in striking out certain evidence in regard to experiments made by the witness Wille, nor in refusing to admit evidence of the results of certain tests made by the witness. Hayes v. Railway Co., 17 Utah 105.

Whether evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the trial court, and its decision will not be reviewed or reversed on appeal. 12 Am. & Eng. Ency. of Law, 400, 409; Homan v. Franklin Co., 98 Iowa 692; People v. Levine, 85 Cal. 39; S.C., 22 P. 791; Leonard v. Ry. Co., 21 Ore. 555; S.C., 28 P. 890.

The witness must first show that the conditions surrounding his experiments were the same, or so similar that the court and jury could say that the results would be the same, before he will be permitted to tell what the results were. 12 Am. & Eng. Ency. of Law, 406, 407; Ry. Co. v. Mugg, 31 N.E. (Ind.), 565, 566; Com. v. Piper, 120 Mass. 190; Hawks v. Charlemont, 110 Mass. 113; Com. v. Twitchell, 1 Brewst., 566; Burg v. Ry. Co., 90 Iowa 106, S.C., 57 N.W. 684; Leonard v. Ry. Co., supra; Kinney v. Folkerts, 84 Mich. 620, 621; Hurd v. Ry. Co., 8 Utah 245; Moore v. Railway Co., 61 N.W. 992; Railway Co. v. Champion, 36 N.E. 223; (dissenting opinion in same case, 32 N.E. 875); Libby v. Scherman, 34 N.E. 803; U.S. v. Reid, 42 F. 134; Clark v. Willett, 35 Cal. 535; Railway Co. v. Pearson, 35 Cal. 247; Medsker v. Pague, 27 N.E. 432; Railway Co. v. Glascott, 4 Colo. 270; Klanowski v. Railway Co., 31 N.W. (Mich.), 275; Railway Co. v. Burgess, 22 So. 139-171.

BASKIN, J. BARTCH, C. J., and MINER, J., concur.

OPINION

BASKIN, J.

This is an action for the recovery of damages, on account of injuries sustained by plaintiff on the 27th day of May, 1896, while in the employ of defendant, as an engineer on its railroad, alleged to have been caused by the explosion of a defective boiler, which the plaintiff, in the discharge of his duties, as engineer of the defendant, was engaged in using, and of which defects the defendant was, but the plaintiff was not, aware.

The answer denied these allegations, and alleged contributory negligence on the part of plaintiff.

Upon the trial the jury returned a verdict in favor of the plaintiff for $ 8,000, and judgment for that sum was rendered against defendant. From this judgment the defendant has appealed.

1. The plaintiff, as engineer, was in charge of the locomotive on which the explosion, which caused the injury, occurred, and in running the train it was his duty to observe the reasonable and proper rules and regulations of his employer. If he failed to do so, and such failure directly contributed to his injury, he can not recover, in the absence of some legitimate excuse for his disobedience of such rules and regulations. Thompson on Negligence, p. 1018, Sec. 23; Bailey's Masters' Liability, pp. 88, 89; Wolsey v. Lake Shore R. R. Co., 33 Ohio St 227; Crew v. St Louis K. & N.W. Co., 20 F. 87; Lyon v. Detroit, etc., R. R....