Nelson v. Southern Pac. Co.

• Decision Date: 17 June 1897
• Docket Number: 798
• Citation: 49 P. 644,15 Utah 325
• Court: Utah Supreme Court
• Parties: ALFRED H NELSON, ADMINISTRATOR, RESPONDENT, v. SOUTHERN PACIFC COMPANY, APPELLANT

49 P. 644

15 Utah 325

ALFRED H NELSON, ADMINISTRATOR, RESPONDENT, v. SOUTHERN PACIFC COMPANY, APPELLANT

No. 798

Supreme Court of Utah

June 17, 1897

Appeal from the Second district court, Weber county. Hon. H. H Rolapp, Judge.

Action by Alfred H. Nelson, administrator of the estate of Charles A. Nelson, deceased, against the Southern Pacific Company. Judgment for plaintiff. Defendant appeals.

Reversed and remanded.

Marshall & Royle, for appellant.

Plaintiff's reckless disregard of all care and caution, and what is reasonably required of passengers on railroad trains, is further illustrated by the following cases: 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 Ry. Law, vol. 2, p. 1083 and cases cited; Patterson's Ry. Accident, p. 282; Penn. R. R. Co. v. Langdon, 92 Penn. St. 21; Goodwin v. R. R. Co., 84 Main 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. 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. Even if defendant was negligent, yet if plaintiff's negligent or imprudent act or conduct contributed to his injuries, he cannot recover. 12 E. & A. R. R. Rep's p. 115; R. R. v. Aspell, 23 Penn. St. 147. If the danger is obvious and such as a reasonable man would not have incurred, the passenger must not assume the risk. Hazard v. Chicago, Etc., R. R., 1 Bissell 503; Pittsburgh v. Krouse, 30 Ohio St. 220; Chicago, Etc., R. R. v. Randolph, 53 Ill. 510; Jefferson, Etc., R. R. v. Swift, 26 Ind. 549.

Evans & Rogers and A. G. Van Horn, for respondents.

Cited: Saunders v. Southern Pacific, 44 P. Rep. 932; Carpenter v. Ry. Co., 56 F. 451; Thomas v. Ry. Co., 60 F. 379; Lawson v. Ry. Co., 64 Wis. 447; White v. Ry. Co., 67 F. 481; Horst v. Ry. Co., 93 U.S. 291; Tibby v. Ry. Co., 82 Mo. 292; Johnson v. Ry. Co., 116 Ill. 206; Rowan v. Ry. Co., 3 N.E. 627; Wallace v. Ry. Co., 138 N.Y. 302; Waterbury v. Ry. Co., 17 F. 671; Hutchinson on Carriers, S. 654 A; Wright v. Ry. Co., 17 N.E. 584; Kane v. Ry. Co., 128 U.S. 91, 96; Flanders v. Ry. Co., 53 N.W. 544; Irwin v. Ry. Co., 16 P. 146; Grand Trunk v. Ives, 144 U.S. 408; Smith v. Rio Grande Ry. Co., 9 Utah 141; Wood v. Ry. Co., 9 Utah 146; Wines v. Ry., 9 Utah 228; Olsen v. Ry. 9 Utah 129; Everett v. Ry., 9 Utah 340; First Sher. & Red. on Negligence, 99.

BARTCH, J. ZANE, C. J., and HILES, District Judge, concur.

OPINION

BARTCH, J.:

The plaintiff, as administrator, brought the action to recover damages for the death of Charles A. Nelson, alleged to have been caused by the negligence of the defendant in the operation of its railroad. The jury returned a verdict in favor of the plaintiff in the sum of $ 20,000, but the court afterwards, in deciding a motion for a new trial, determined to grant it unless a remittitur were filed which would reduce the amount to $ 15,000. The plaintiff then consented to file such remittitur, and thereupon judgment was entered accordingly, and the motion overruled. This appeal is from the judgment, and from the order overruling the motion for a new trial; but as this court has held in White v. Pease, 15 Utah 170, 49 P. 416, that no appeal lies in this state from an order overruling a motion for a new trial, the appeal from the judgment alone can be considered.

Counsel for the appellant, in the first instance, insist that certain facts are established by a preponderance of the evidence. However this may be, it is but for us to reply that we have no power to determine whether the preponderance of the evidence is with the appellant or respondent. Section 9, art. 8, of the constitution, provides, "In cases at law the appeal shall be upon questions of law alone." Under this provision of the constitution, this court on appeal has no power to review the facts in a case at law, except so far as may be necessary to determine questions of law. It is therefore useless to incumber the record with any evidence in such a case which is not necessary to the determination of the questions of law presented, because, if there is any evidence to sustain the judgment, we are powerless to determine whether such evidence preponderates, or whether, under all the evidence, we would render the same judgment, and, if not, then substitute our judgment for that of the jury. In all such cases it is the province of the trial court and jury to determine as to where the preponderance of the evidence lies. Hence, this being an action at law, all questions of fact raised in the record must be eliminated, and questions of law alone considered.

Counsel also insist that the court erred in its instructions to the jury. At the trial they excepted to a specific portion of the charge, and as the part so excepted to relates to and affects almost an entire paragraph, we will consider not only that to which the exception was specifically taken, but also what is affected thereby. The portions of the paragraph thus subject to the objection read as follows: "And if in this case the jury believe from the evidence that deceased, by waiting a short time in the sheep cars, until the train stopped at the summit, could have left the sheep cars and walked back to the caboose upon the ground, and that he was exposed to no danger or peril by so remaining in the sheep cars; that the deceased, disregarding this means of so returning to the caboose, carelessly, or recklessly, in the face of known or apparent danger, attempted to pass from the sheep cars to the caboose over the tops of intermediate cars of unequal height, while passing through the snow sheds, and in a storm of wind and snow so severe as to tax all his energies to maintain his footing upon the tops of the cars (if you find that such climatic conditions existed at that time), and in so doing he was struck and injured--his own careless and reckless action was the cause of his own injury, and plaintiff cannot recover in this action, even though you believe from the evidence that the defendant was also negligent, unless you further believe from the evidence in this case that it was a usual custom or practice among sheep men at or prior to the time of the injury, and at or near the place of injury, to walk across the tops of the cars, and that such custom or practice was known to the defendants or its agents, and acquiesced in by them. And upon that point the court instruct the jury that, to establish a custom or usage in business dealings and employments, the custom or usage must be so certain, uniform, and reasonable as the business to which the rule applies will permit, and sufficiently old to be generally known, both to the persons occupied in the business in which custom or usage is relied upon, and also to the persons or their agents against whom such custom is sought to be proven." The part specifically excepted to is the last clause above quoted, which defines the word "custom." It will be noticed that this clause refers to the subjunctive clause immediately preceding it, beginning with the word "unless," and that the subjunctive clause qualifies what precedes it. The plaintiff's intestate was accompanying a shipment of sheep to California, and was killed while walking on the top of the cars of a moving train, west of Truckee, at the Sierra Nevada Mountains, as the train entered a snowshed, by being struck in the back of the head by one of the timbers of the overhead structure; and one of the most important issues in the case was whether, in shipping stock over the appellant's railroad across those mountains, it was a custom known to the railroad company for those in charge of stock, after attending to the same, to get on top of the cars and walk back to the caboose over the running boards. Therefore the defining of the word "custom" became a...