Ohlenkamp v. Union Pacfic Railroad Co.

• Decision Date: 25 January 1902
• Docket Number: 1324
• Court: Utah Supreme Court
• Parties: MARY E. OHLENKAMP, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

67 P. 411

24 Utah 232

MARY E. OHLENKAMP, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

No. 1324

Supreme Court of Utah

January 25, 1902

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

Action to recover damages for the death of plaintiff's husband alleged to have been caused by the negligence of the defendant in the operation of its railroad. From a judgment in favor of the plaintiff for $ 4,250, the defendant appealed.

REVERSED and remanded.

LeGrande Young, Esq., and A. W. Agee, Esq., for appellant.

The verdict being unsustained by the evidence and proof, it should have been set aside by the court and a new trial granted, and the court will notice the evidence, and, finding there is no proof to sustain the material allegations of the complaint, is bound to reverse the case on that ground.

See Thompson on Trials, section 2273, in which the author says:

"An appellate court will set aside a verdict where the evidence against it preponderates to such an extent as to create an unavoidable conclusion that the verdict was the result of passion or prejudice."

The plaintiff's own testimony and the testimony of defendant shows so plainly that whatever the conditions were about the stopping or moving of the freight train, plaintiff's intestate contributed to his own misfortune by not paying attention to the conditions surrounding him, and the court on this ground alone should reverse the court below. Grand Trunk Railway Co. v. Baird, 94 F. 946; Railway Co v. Vollard, 27 Wallace 341; Railway Co. v. Jones, 95 U.S. 439; Clark v. O. S. L. R. R., 20 Utah 401.

The court erred in allowing the testimony of witness, over the objection of defendant, as follows:

"Q. Now, then, suppose there were five or six loaded cars behind the empty coal car and the engine ahead, and the air is put on from the rear end of the train with full force. Under these circumstances isn't it more than likely that the car would be thrown up--tipped up off the track?"

Objected to by counsel for defendant, for the reason that there is no evidence before the court that the air was put on full force from the rear end of the train. Another objection by counsel for defendant was that there is no evidence that the car was tipped up or thrown off the track. Objection and motion to strike out overruled.

This evidence was calculated to mislead the jury, as it is a variance from the allegations of the complaint of plaintiff. There is not a single allegation, nor was there any testimony from any witness, that the car was thrown up. Not a single witness testified to the hypothetical proposition made by Judge Maginnis; on the contrary, when they asked Mrs. Mildon if the cars did not jump up, she said no, they did not; they bumped together as she had seen them do many times. Now, testimony of this kind would mislead the jury, and no doubt did mislead them, to the injury of defendant in this case.

It is scarcely necessary to cite authorities on a proposition so primary as this or to make an extended argument about the impropriety and illegality of plaintiff being allowed to introduce testimony on a question not mentioned in the complaint; we will, however, call to the court's notice the following: Peay v. Salt Lake City, 11 Utah 331; McCord v. Seal, 56 Cal. 262; Hecla Gold Mining Co. v. Gisborn, 21 Utah 68.

W. L. Maginnis, Esq., for respondent.

BARTCH, J., delivered the opinion of the court. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

The plaintiff brought this action to recover damages for the death of her husband, alleged to have been caused through the negligence of the defendant in the operation of its railroad. The complaint charged that while the deceased, Henry F Ohlenkamp, was on top of the defendant's moving freight train, in the performance of his duties as a brakeman, its conductor carelessly and negligently caused the train "to be brought to an unnecessarily sudden stop," while the same was "running at the rate of about ten miles an hour," without giving the deceased any warning of the sudden stoppage, and thereby caused him to fall from the top of the train, inflicting injuries which caused his death; and that the stoppage was effected "by means of what is known as the emergency air brake,' without sufficient or any cause for the use of such extraordinary means." The answer denied negligence on the part of the defendant, and alleged as the cause of the injuries, negligence by the deceased, and also assumption of risks by him. The evidence, among other things, shows that the accident happened on the third of July, 1900, at or near the station of Uintah, Utah; that at the time the deceased was on top of one of defendant's freight trains, on the third car from the engine, attending to his duties as a brakeman; that the train consisted of thirty-three cars, drawn by one of the largest engines used on that road; that on approaching the station, and just before the accident, the train was running down grade at a speed of about eight miles an hour; that as the train was passing the station the conductor received notice to pick up an empty car, his train having been a way freight, and he having had orders to pick up and drop cars; that he immediately gave the usual signal to stop; that the engineer failed to receive the signal; that the brakeman noticed the signal, and the deceased was attempting to give the same to the engineer when the injury occurred; that upon the engineer failing to receive the signal from the conductor, the latter went to the rear of the caboose, and applied the air brakes from the rear end of the train, and that thereupon the deceased, pitching forward, fell from the train, and received the injuries which resulted in his death. There is some evidence tending to show that the air brake is only applied from the rear of a freight train in cases of danger, and is used only as an emergency, and then there is evidence tending to show that it is customary to use it in cases like the one at bar, where the conductor wishes to stop, and the engineer fails to receive the usual signal. It is also shown that the air...