Mickelson v. New East Tintic Ry. Co.

• Decision Date: 11 December 1900
• Citation: 64 P. 463,23 Utah 42
• Court: Utah Supreme Court
• Parties: JAMES MICKELSON, Respondent, v. NEW EAST TINTIC RAILWAY COMPANY, Appellant

64 P. 463

23 Utah 42

JAMES MICKELSON, Respondent, v. NEW EAST TINTIC RAILWAY COMPANY, Appellant

Supreme Court of Utah

December 11, 1900

Appeal from the Fifth District Court Juab County.-- Hon. E. V. Higgins, Judge.

Action for damages for personal injuries alleged to have been caused by the negligence of defendant company. From a judgment for plaintiff defendant appealed.

REVERSED.

Messrs Bennett, Harkness, Howat, Sutherland & Van Cott for appellant.

It is not permissible, when undertaking to prove negligence on the part of defendant, to show that he has been negligent at any other times or in other places and in other ways than the one immediately in controversy. Snowden v. P. V. Coal Co., 16 Utah 336.

All immaterial testimony is presumed to be prejudicial to that party against whom it is admitted. Before the court can say that it is not prejudicial, it must clearly appear to the court that the party against whom it was admitted could not be prejudiced by it. In this case the testimony is so clearly prejudicial that it is apparent the purpose of the plaintiff in insisting upon its remaining was to prejudice the jury against the defendant company.

There is no need of citing a multitude of cases upon this point, as this court has heretofore held that in such cases the judgment of the court below will be reversed. The following cases are directly in point. Snowden v. P. V. Coal Co., 16 Utah 336; Stoll v. Daly Mining Company, 19 Utah 271-286.

Jones as engineer, had no authority to employ any one on behalf of the defendant company. That is doubtless the law. Church v. Ry. Co. (Minn.), 52 N.W. 647; Atchison Co. v. Lindley (Kan.), 22 P. 703.

While knowledge without objection on the part of one having authority to do the act originally may be evidence of acquiescence in and ratification of the act, when done by some one not having authority, yet it is not of itself either acquiescence or ratification. Reubin v. Cohen, 48 Cal. 545; California Bank v. Sayne, 85 Cal. 102; Deland v. Dixon Nat. Bank, 111 Ill. 323, 328; Deane v. Gray Bros. Co., 42 P. 443.

Messrs Powers, Straup & Lippman for respondent.

Under the circumstances of the case, were there no other evidence of employment, the engaging of plaintiff by Jones would constitute plaintiff for the time being the servant of the defendant. Fox v. C. St. P. Etc. Ry. Iowa, 17 L. R. A. 289; Sloan v. Central Iowa Ry. Co. (Iowa), 11 A m. & En. R. R. Cases, 145.

"An express contract is not essential to create the relation of master and servant; it may be implied from circumstances." Crowerocks v. Hall, 38 Ind. 402.

"In other words, the relation of master and servant and the responsibility of the master, grows out of, is measured by, begins and ends with his control of the servant." Wiltse v. State Road, 63 Mich. 639; Fell v. Rich Hill etc. Co., 22 Mo.App. 216.

"It exists whenever the employer retains the right to direct the manner in which the business shall be done." Brown v. Smith, 22 Am. St. Rep. 459; Singer Mfg. Co. v. Rohn, 132 U.S. 518.

Under all the circumstances, the question whether plaintiff was a servant of the defendant was one of fact for the jury. Packett Co. v. McCune, 17 Wallace 508; Shultz v. C. M. & St. P. Ry. Co., 40 Wis. 589; 13 Am. & En. R. R. Cases, 453.

Counsel complains because the court refused its request No. 8, wherein it was stated that Jones, the engineer, had no authority to employ plaintiff, and plaintiff could not by reason of such employment become the servant or employee of the defendant and because the court gave such request with the addition: "Unless you further find from the evidence that the defendant or its agent either knew of such employment and acquiesced therein, or that the defendant or its agent on the day of the accident and prior to such accident saw the plaintiff working on or about said train assisting said engineer, and made no objection thereto."

The refusing of such like request is not error though it may be a correct statement of the law as far as it goes. Grand Trunk v. Ives, 144 U.S. 408.

But if the instruction as finally given by the court with his modification or addition, was wrong, counsel should have excepted to it properly by pointing out the particular objectionable matter and thereby have given the court an opportunity to correct it. This the defendant did not do, but simply took a general exception to the whole instruction, including the portion of its own request. Such an exception is not good; especially if any portion of the instruction was correct; and we hardly think counsel will say that the portion which they themselves requested was not law. Nebeker v. Harvey, 21 Utah 363; 60 Pacific 1029; Haun v. Railroad, 22 Utah 346.

BARTCH, C. J. Miner, J., concurs; Baskin, J., dissents.

OPINION

BARTCH, C. J.

The plaintiff brought this suit to recover damages for personal injuries which he claims he received, through the negligence of the defendant, while in its employ as a brakeman, in attempting to couple cars on its railway tracks. At the trial the jury returned a verdict in his favor for the sum of $ 5,000, and, from the judgment entered in accordance therewith, the defendant appealed, and has assigned various errors claimed to have been committed during the trial of the cause. From the record, among other things, it appears that the injury complained of was received on July 12, 1898, at Mammoth, Utah. At the time of the accident the plaintiff was coupling cars, and, in so doing, had one of his feet caught between the guard rail and main rail of the track, and, finding that he was unable to extricate himself, threw himself outside the track, when the car ran over his foot, crushing it, and necessitating amputation above the ankle. There is some question under the evidence as to whether, at the exact spot where the accident occurred, the railway track belonged to the defendant company, or to the Oregon Short Line Railway Company, the tracks of the two corporations connecting near that point, but from the view we have taken of this case, as it is now before us, we do not deem it necessary to determine this question. The more serious question is whether, at the time of the injury the plaintiff was in the employ of the defendant and as to whether or not the court erred in its instructions to the jury, touching this point, for, if he was a mere volunteer, then his case is controlled by entirely different principles from those applicable to that of an employee. There is no dispute that for some time prior and up to June 15, 1898, he was in the regular service of defendant, and working for it in different capacities, among which were breaking and firing on its road, but on that day he quit such service. Whether or not he was an employee of the defendant at the time of the injury, was one of the issues raised at the trial. Respecting this the plaintiff, in his own behalf, testified that he quit work on June, 15, 1898, because he did not get full payment for the time of firing; that afterwards he went to Salt Lake City and there saw James A. Cunningham, who was the president and principal stockholder of the defendant; that Cunningham asked him if he had quit working, and, upon being informed that he had, wanted him "to go out there again," and told him he would fix it right with him; that he went back, and on July 9, saw Al Cunningham, the superintendent of the defendant's railroad, and had some talk with him about resuming work; that the superintendent "was just gassing" and said: "I would not have anything to do if you went to work again;" that he did not tell him that he had a talk with his father; that on July 11, he went to work breaking again; that Al Cunningham saw him at work and made no objection; and that John C. Jones was the defendant's engineer. On cross-examination, concerning his resuming work on the eleventh and continuing on the twelfth, the witness testified: "I was going up to the Grand Central mine, and the engineer wanted me to go down with him a trip. I told him I didn't like to, but I went. The engineer said if Cunningham didn't pay me he would. He said, I know they want you to work again, and I told him what Cunningham said, and he said, 'If Cunningham won't pay you I will,' and on that talk I went again to work, and went down to the Mammoth mill, and Al Cunningham saw I was there, and he didn't come out. When I saw Al Cunningham he was at the Mammoth office, located north of the Mammoth mill. He looked up at the train. We made three trips that day from the Mammoth mine to the mill, but didn't go down to the yard. We hauled three cars at a time. That took us to some time in the afternoon. I should think about 3 o'clock. We commenced about 8 or 9 o'clock. They were delayed on account of Al Cunningham not coming up. The next morning I went to work again. I had not talked with Al Cunningham, didn't see him that day, and didn't see James Cunningham. I was a short distance away from the engine somewhere; I was going some place, I don't remember where, and the engineer halloed at me and asked me to go and help again that day. I would not have gone back...