Minty v. Union Pacific Railway Company

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

21 P. 660

2 Idaho 471

MINTY v. UNION PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

March 11, 1889

MASTER AND SERVANT-RISKS.-The traveling auditor of a railroad company, whose duties are to travel on the company's cars from stations on its roads and audit accounts, is a servant of the company's, and assumes the ordinary risks incident to the employment.

SAME-ACCIDENT-PRESUMPTION.-Where such servant is injured in an accident resulting in the derailment of the car on which he is riding, it will be presumed, until the contrary is shown, that the company was not in fault in providing suitable instrumentalities for the business, and had no notice of any defect or other causes of the accident.

WHAT PARTY INJURED MUST SHOW.-Before the servant can recover, he must show that the injury did not arise from a defect obvious to himself, or which, by the exercise of ordinary care, he might have known.

HAZARD OF BUSINESS.-He must show it was not from hazard incident to the business.

CHARGES TO THE JURY.-Where the judge charged the jury that, if the car was overturned by reason of any defect in said car, or of the track on which it was running, this is in itself presumptive evidence of neglect on the part of the defendant and the burden is then on the defendant to show that there has been no negligence whatever, held, that as between master and servants such presumption of negligence does not so arise, and the charge was erroneous.

SAME.-The court also charged, while the burden of proof is on the plaintiff to show negligence of the defendant, yet it is sufficient for that purpose, prima facie, if he show he suffered injury without his fault, while lawfully traveling in the car of the defendant, and that the cause of that injury was probably the negligence of the defendant, held, to be error, and that whether it is so or not is in the knowledge of the defendant, and the defendant must then show what the real cause of the injury was, and if the defendant does not choose to give the explanation, the jury will be authorized to find that the real cause of injury was the negligence of the defendant in the particular case specified in the complaint, held, that this was error.

(Syllabus by the court.)

APPEAL from District Court, Oneida County.

The facts appear in the following statement by BERRY, J.:

On the twelfth day of January, 1884, the plaintiff was in the employ of the defendant as traveling auditor, his duties extending over the entire lines of the company west of Cheyenne including the entire Utah and Northern road, and continued in such employment until August 17, 1886. On the seventh day of January, 1886, while on duty, and on a train, traveling from station to station on the Utah and Northern road, and in the course of such employment as traveling auditor, the car in which the plaintiff was riding was derailed and the plaintiff was injured. The case was tried by a jury before Honorable Case Broderick, district judge, at the May term, 1888, in Oneida county. The jury returned a verdict for the plaintiff and assessed his damages at $ 4,000. Judgment was entered and docketed the same day. A bill of exceptions was duly made by the defendant, and a case containing the evidence, bill of exceptions as agreed upon by the respective parties, was settled and allowed, upon which the defendant moved for a new trial, which was refused, and the defendant appeals from both the judgment and the order denying a new trial. In the complaint the cause of action is stated as follows "That on or about the first day of November, 1885, and from that time continuously until on or about the first day of April, 1886, the defendant negligently and carelessly permitted the said line of railroad, known as the 'Utah and Northern Railway,' to become ruinous and out of repair, and so negligently and carelessly permitted the rails upon said railway to become worn out and weak and insufficient to support the trains run upon the same, and particularly did negligently and carelessly permit said rails to become so worn out and weak and insufficient on the seventh day of January, 1886, at a point in Montana territory, near Monida station, that the said rails there became broken on the passage over them of the train on which the plaintiff was that day riding, as hereinafter stated; that on the said seventh day of January, 1886, this plaintiff was traveling in the discharge of his duties as traveling auditor upon the regular passenger train of the defendant; that the defendant, while knowing the ruinous condition of its said track, was nevertheless running both passenger and freight trains upon it; that while plaintiff was rightfully riding said train, it came to a point near Monida aforesaid, where said rails were worn out, and weak, and insufficient to support the trains, as above stated, when, by reason of the said worn out, weak, and insufficient condition of said rails, upon said track so negligently and carelessly permitted to be and remain there, one of said rails became broken, and the car in which plaintiff was riding was thereby and by reason of the aforesaid ruinous condition of the track at that place run off the track," etc., whereby the plaintiff was injured, etc., to his damage, etc.; "that plaintiff was at all times before he received said injuries ignorant of the ruinous condition at said place, and defendant had then, and for a long time immediately prior thereto, notice and full knowledge of said ruinous condition of said railroad; wherefore the plaintiff demands judgment." The answer puts in issue each allegation of the complaint, but avers that plaintiff "was at the time an employee of the defendant, to wit, its traveling auditor upon the said Utah and Northern Railway and other lines of railway owned or operated by defendant; that it was the duty of the plaintiff to travel from one station to another on the line of said railway, and audit the accounts of the station agents of defendant on said railway; that by his contract of employment . . . . plaintiff was to receive a certain price and compensation per month, and was to be transported from place to place on said railway, free of charge, as his duties as such employee required; that in pursuance of said contract the defendant issued to plaintiff an employee's time-pass or free ticket; that said pass had indorsed thereon a condition to the effect that the person accepting the same should assume all the risks of accidents, etc.; that the plaintiff had knowledge of such indorsement, accepted the terms, and was bound by it." Other facts of the case will appear in the opinion of the court.

Judgment reversed, and a new trial ordered.

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

The evidence must establish the negligence alleged to be the cause of the injury, or it fails to justify the verdict. (Batterson v. Railway Co., 49 Mich. 184, 13 N.W. 508; Morse v. Railway Co., 30 Minn. 465, 16 N.W. 358; Murray v. Railroad Co., 3 N. Mex. 337, 9 P. 369.) The burden of proof of the negligence alleged is upon the plaintiff. (Wood on Master and Servant, sec. 382; Shearman and Redfield on Negligence, secs, 222, 223; Rose v. Railroad Co., 58 N.Y. 221, 222; Wright v. Railroad Co., 25 N.Y. 562; Railroad Co. v. Ledbetter, 34 Kan. 326, 8 P. 411.) And proof of the accident merely, or the injury received, is not sufficient to establish negligence even prima facie. (Wood on Master and Servant, sec. 419; Wharton on Negligence, sec. 421; Nytoglycerin Case, 15 Wall. 524; Lockwood v. Railway Co., 55 Wis. 50, 12 N.W. 401; Railroad Co. v. Scott, 64 Tex. 549.) Evidence relating to accidents and repairs or replacements, occurring and made at points remote from, and long after the happening of, the particular accident causing the injury complained of, is not admissible. (Morse v. Railroad Co., 30 Minn. 465, 16 N.W. 358; Reed v. Railroad Co., 45 N.Y. 574; Dougan v. Transportation Co., 56 N.Y. 1; Baird v. Daly, 68 N.Y. 547; Hudson v. Railroad Co., 59 Iowa 581, 44 Am. Rep. 692, and note, 13 N.W. 735; Hipsley v. Railway Co., 27 Am. & Eng. R. R. Cas. 287; Railroad Co. v. Fox, 11 Bush, 495; Pierce on Railroads, 293.)

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

Derailment of a car makes out a prima facie case of negligence. (Cleveland etc. R. R. Co. v. Newell, 104 Ind. 264, 54 Am. Rep. 312, 3 N.E. 836; Railroad Co. v. Rainbolt, 99 Ind. 551; Hipsley v. Railway Co., 27 Am. & Eng. R. R. Cas. 287, and note.) The allegation of the derailment of the cars, and the consequent injury to plaintiff, were all he needed to prove. (Railway Co. v. Jones, 108 Ind. 551, 9 N.E. 476; Shearman and Redfield on Negligence, secs. 280, 280a; Edgerton v. Railway Co., 39 N.Y. 227; Fairchild v. Stage Co., 13 Cal. 605; Thompson on Carriers, 181, 355; Fitch v. Railway Co., 45 Mo. 322.)

BERRY J.

OPINION

BERRY, J.

(After Stating the Facts.)--The specific wrong by the defendant of which the plaintiff complains, after a general statement relating to the track, is that "in particular [the defendant] did negligently and carelessly permit said rails to become so worn out and weak and insufficient, on the seventh day of January, 1886, at a point in Montana territory, near Monida station, that the rails there became broken, on the passage over them of the train in which the plaintiff was that day riding"; that on that day "the defendant, well knowing the condition of its said track," ran its cars upon it, and, at a "point near Monida aforesaid," where the rails were worn out, and too weak to support the train, and by reason of such weak and worn-out condition of said rails "there" or at that point the car in which the plaintiff was riding "was thereby and by reason of the said ruinous condition of the track at that place run off the track," a...