Nelson v. Southern Pac. Co.

• Decision Date: 07 December 1898
• Citation: 18 Utah 244,55 P. 364
• Court: Utah Supreme Court
• Parties: ALFRED H. NELSON, ADMINISTRATOR OF THE ESTATE OF CHARLES A. NELSON, RESPONDENT v. SOUTHERN PACIFIC COMPANY, APPELLANT

55 P. 364

18 Utah 244

ALFRED H. NELSON, ADMINISTRATOR OF THE ESTATE OF CHARLES A. NELSON, RESPONDENT v. SOUTHERN PACIFIC COMPANY, APPELLANT

Supreme Court of Utah

December 7, 1898

Appeal from the District Court of Weber County, Hon. H. H. Rolapp Judge.

Action by plaintiff as administrator to recover damages in consequence of the death of Charles A. Nelson, caused as alleged by the negligence of defendant. From a judgment for the plaintiff defendant appeals.

Affirmed.

Messrs Marshall, Royle & Hempstead for appellants.

The court erred in overruling defendant's motion for a non-suit (based principally upon the absence of negligence on the part of defendant and upon the contributory negligence of deceased.) Fowler v. Pleasant Valley Coal Co., 52 P 594; Cunningham v. Chicago R. R., 5th McCreary, 471; Railroad Co. v. Jones, 95 U.S. 439; Goodwin v. Railroad Co., 84 Me. 203.

The passenger is bound to conduct himself while upon the train in a prudent manner, and if he unnecessarily or negligently exposes himself to danger and as a consequence is injured, he cannot recover redress from the company, although it was also negligent because in such case the fault is mutual. Brennan v. R. R. Co., 45 Conn. 284; Willis v. Long Island R. R. Co., 34 N.Y. 670; Hickey v. Boston, etc., R. R. Co., 14 Allen, 427; Wood's Railway Law, Vol. 2, p. 1083 and cases cited; Patterson's Railway Accident, p. 282; Penn. R. R. Co. v. Langdon, 92 Penn. St. 21; Goodwin v. R. R. Co., 84 Me. 203.

The fact that a passenger did not know that his act was careless will not avail him, as he was bound to know. Penn. R. R. Co. v. Henderson, 43 Penn. St. 449; Southern R. R. Co. v. Kendrick, 40 Miss. 374; O'Donnell v. R. R. Co., 59 Penn. St. 239; McIntyre v. N.Y. Central, 34 N.Y. 287.

Even if the defendant was negligent, yet if the plaintiff's negligent or imprudent act or conduct contributed to his injuries he cannot recover. 12 E. & A. R. R. Reps., p. 115; R. R. Co. v. Aspell, 23 Pa. St. 147; Piper v. Ry. Co., 50 N.E. 851.

The following cases hold directly and in principle that it is negligence in law, defeating recovery, for a man in charge of stock to climb over the top of the car; and hence that it was error to overrule appellant's motion for a non-suit. Ry. Co. v. Lindley, 42 Kansas, 714 and cases cited; Kimball v. Palmer, 80 F. 240; Tuley v. Ry. Co., 41 Mo.App. 432; Davis v. Ry. Co., 21 S.C. 93; Wolf v. Ry. Co., 88 Ga. 210; Sisco v. Ry. Co., 145 N.Y. 296; Illick v. Ry. Co., 67 Mich. 632; Jackson v. Crilly, 16 Colo. 103; Smith v. Ry. Co., 99 N.C. 241.

Evidence of a temporary custom of which the party to be affected has no knowledge is not admissible against him. Wootters v. Kauffman, 68 Tex. 493.

The existence of fact as to custom is a question for the jury. The validity of the custom from these facts for the court. 27 Am. & Eng. Enc. of Law, pages 713 and 732.

The court erred in overruling the defendants challenge of array of the jury.

Under section 1302 of the Revised Statutes, 1898, jury commissioners could only be appointed for the next calendar year. The calendar year of January 3, 1898, when the order (objected to was made) was from January 1, 1898, to December 31, 1898. As commissioners could only be appointed for the next calendar year, they could not act as jury commissioners except from January 1st to December 31st, 1899. And yet the court because of the difficulties in the case, required the jury commissioners to act for 1898. It is not for us to say, whether or not the court could have acted under chapter 52 of the Session Laws of 1896, or whether or not he had the right to summon the jury as at common law. Perhaps he might have pursued either course. We contend, however, that he had no right to violate section 1402 of the Revised Statutes of 1898, nor compel us to try the case by a jury not empaneled according to law.

The court erred in permitting oral testimony concerning the contents of the duplicate contract in the possession of the decedent. The duplicate of defendant being in evidence and the parol testimony introduced enlarging defendant's copy of the contract.

It is an established rule that where there are duplicate originals, all of the originals must be accounted for before secondary evidence can be given of any one of them. 1st Phillips on Ev., 4th Am. Ed., 586; 1st. Greenleaf, 558.

Each duplicate writing is complete evidence of the intention of the parties. 1st Bou. Law Dic., Title Duplicate. Anderson's Law Dictionary, Title Duplicate.

David Evans, Esq., L. R. Rogers, Esq., and A. G. Horn, Esq., for respondent.

The question of defendant's negligence has been settled by this court upon a previous appeal. (Saunders v. Southern Pac., 13 Utah 275.) Upon the authority of the following cases: Sherman & Redfield on Neg., Secs. 198, 199 and 200; Carpenter v. Ry. Co., 56 F. 451; Ry. Co. v. Horst, 93 U.S. 291; Hutchinson v. Carriers, 555 B; Patterson Ry. Ac. Law, Secs. 211, 212; Ry. Co. v. Lockwood, 35 Ills. 357; Ry. Co. v. Irwin, 37 Kans. 701; S. C. 16 P. 146; Ry. Co. v. Johnson, 116 Ills. 206.

Counsel also contend that the injured parties were guilty of contributory negligence. This court has repeatedly held that contributory negligence is a question of fact for the jury to determine. It is likewise held in a previous appeal of this case, that the question of contributory negligence was one for the jury and not for this court. Saunders v. Southern Pacific, supra; Lawson v. Ry. Co., 64 Wis. 447; White v. Ry. Co., 67 F. 481; Horst v. Ry. Co., 93 U.S. 291; Johnson v. Ry. Co., 116 Ills. 206; Wallace v. Ry. Co., 138 N.Y. 302; Hutchinson on Carriers, Sec. 654a; Kain v. Ry. Co., 128 U.S. 91; Irwin v. Ry. Co., 16 P. 146.

It is also contended on the part of counsel as we understand them that evidence of custom is not admissible. In similar cases to the one at bar it has been repeatedly held that evidence of custom and usage of stockmen to walk over the tops of cars while returning to the caboose is admissible for the purpose of rebutting the idea of contributory negligence. Carpenter v. Ry. Co., 56 F. 541; Goodes v. Boston, etc., Co., 38 N.E. 500; Lowe v. Chicago, etc. Co., 56 N.W. 519; Taylor v. Delaware, etc., Co., 113 Penn. St. 162; Wright v. Southern Pac., 46 P. 374.

Counsel further contend as we understand them, that after evidence of custom has been introduced it is the province of the court to determine whether a custom has been established. This is clearly not the rule as laid down by the authorities. 1 Thompson on Trials, Sec. 1058; Sultana v. Chapman, 5 Wis., 454; Robinson v. U.S., 13 Wall, 363; Chicago, etc. v. Tilton, 87 Ill. 547; Chesapeake Bank v. Swain, 29 Md. 483; Kuhlman v. Brown, 4 Rich. L. (S. C.) 479; Steamboat v. Hopkins, 30 Miss. 703.

The charge of the court in these cases on the question of custom, was strictly in harmony with the views of this court, upon a previous appeal, in the case of Nelson v. So. Pac., 15 Utah 325.

The only point made on the question of the challenge to the array of the jury is, did the court have the power to appoint jury commissioners to select jurors under an order made by the court January 3d, 1898. The new code took effect January 1, 1898, in which is contained the jury law under consideration. Section 1302 Revised Code of 1898, provides: "The judge or judges of the district court of each county shall prior to December 1st of each calendar year, appoint for the next calendar year, two persons as jury commissioners, who shall be voters of the county, etc." No question is made as to the regularity in selecting a list of jurors in the manner and mode provided by the new code. The only question to be determined by this court is whether the time designated by the statute for the appointment of jury commissioners is mandatory or directory. It is our contention that the time within which the jury commissioners were to be appointed, as provided by the legislature, is directory and not mandatory. But even were this not true the challenge to the panel cannot prevail.

Sec. 3140 Rev. Stats. of 1898, provides: "A challenge to the panel can only be founded on a material departure from the forms prescribed in respect to the drawing and return of the jury, or on an intentional omission of the proper officer to summon one or more of the jurors drawn."

The statute having designated the ground for challenge to the panel the same is exclusive of any other. Thompson on Trials, Sec. 34; 12 Enc. of Pl. & Pr. 422, and cases; State v. Arnold, 12 Ia. 479; State v. Raymond, 11 Nev. 98; People v. Wallace, 101 Cal. 281.

After having shown that the copy of the contract which decedent Nelson had in his possession was lost, plaintiff was entitled to show by Mr. Saunders whether or not the name of Nelson was upon that copy of the contract which Nelson had. In the light of the circumstances, by every principal of law, such evidence was properly admissible. Lawson v. Railway Co., 64 Wis. 447.

ZANE, C. J. CHERRY, Dist. Judge, concurred. BARTCH, J., dissenting.

OPINION

ZANE, C. J.

This was an action to recover damages in consequence of the death of Charles A. Nelson, caused as alleged, by the negligence of the defendant in placing three refrigerator cars between the caboose and eleven cars loaded with sheep in charge of deceased and two other men, and in constructing and maintaining a snow shed so low that deceased was killed by it while passing over a refrigerator car from the sheep cars to the caboose, the refrigerator car being about eighteen inches higher than other freight cars. The trial of the cause commenced on January 11th, 1898. When the jurors were called the defendant challenged the array because the commissioners who selected them were not appointed prior to the first day of the...