Reddon v. Union Pac. Ry. Co.

• Decision Date: 01 October 1887
• Citation: 15 P. 262,5 Utah 344
• Court: Utah Supreme Court
• Parties: WILLIAM C. REDDON, RESPONDENT, v. UNION PACIFIC RAILWAY CO., APPELLANT

15 P. 262

5 Utah 344

WILLIAM C. REDDON, RESPONDENT, v. UNION PACIFIC RAILWAY CO., APPELLANT

Supreme Court of Utah

October 1, 1887

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial.

The seventh instruction given was as follows:

7. You are further charged, gentlemen of the jury, that the defendant was not the insurer of the safety of the plaintiff in its employ. It simply engaged to exercise ordinary care to keep the mine and the workings in a reasonably safe condition, and if it failed to do so it is liable to the plaintiff for any injury which may have befallen him by reason of such failure, while the plaintiff was engaged in the due course of his employment, provided that you believe from the evidence that the plaintiff at the time was free from fault or negligence on his own part.

If the jury find from the evidence that the entry in which the plaintiff was working at the time he was injured was unsafe and very dangerous, and that he, prior to and at that time knew or had the means of knowing that fact equally with the defendant, he cannot recover for such injury, although received by reason of such unsafe condition, unless you further find from the evidence that the plaintiff called the attention of the defendant's foreman to such danger or notified the defendant thereof, and the defendant by its proper agent assured the plaintiff that the danger would be remedied within a reasonable time, and the plaintiff relying thereon continued to work. What will constitute such reasonable time is to be determined by you, from the circumstances and the character of the danger; and if a reasonable time had not expired before the accident causing the injury took place, the plaintiff had assumed the risk of the peril.

The remaining facts are sufficiently stated in the opinion.

Affirmed.

Mr. P. L. Williams, for appellant.

The damages given by the verdict were excessive: Kan. Pac. R'y Co. v. Peavy, 11 Amer. and Eng. R. R. Cases, 260, and cases reviewed at pages 269-70; Sioux City & Pac. R. R. Co. v. Finlayson, 18 Amer. and Eng. R. R. Cases, 68; Ill. Cent. R. R. Co. v. Ebert, 74 Ill. 399; Chi. West Div. R'y Co. v. Hughes, 87 Ill. 94; Chi. R. I. & Pac. R. R. Co. v. Payzant, 87 Ill. 125; Ill. Cent. R. R. Co. v. Parks, 88 Ill. 373.

On the hearing of the appellant's motion for a new trial in the district court, that court declared that in its opinion the verdict was excessive, and that a new trial ought to be granted unless the plaintiff remitted $ 5,000, which being done the motion was denied.

Admitting for the moment that the court could properly correct this error of the jury in the manner pursued, it is still insisted that it did not do so, but that the sum of $ 15,000, which was substituted for the verdict of the jury, is excessive and the judgment for that sum should be reversed.

Although the practice pursued in this case by the district court is often adopted, it is not uniformly supported by the authorities, nor easily justified by reason. The finding by the court below that the verdict was excessive, necessarily implies also the finding, that it was the result of passion or prejudice.

Can the remission of a part of a verdict founded in prejudice or passion free it from that stain and blot? Surely not. The attempt by this means to do so is not consistent with the provision of the statute itself, with reason, or a proper regard for the pure and unbiased administration of the law: Suth. on Dam., vol. 1, 813, et seq., and cases there cited: Koeltz v. Blackman, 46 Mo. 320; 17 Grant, 366.

The defendant's motion for non-suit should have been sustained.

The charge of the court numbered seven, is to the effect that the plaintiff might recover, notwithstanding he voluntarily and with full knowledge of the facts worked in a dangerous place, and that he would be barred of a recovery only in a case of voluntarily, and with knowledge, or the means of knowing the facts, working in a very dangerous place. This is inconsistent with the current of authority and is erroneous: Beach on Contributory Negl., sec. 12, and cases cited; City of Erie v. Magill, 47 Amer. Rep., 739 and note; Schaefler v. City of Sandusky, 31 Amer. Rep., 533; Mansfield Coal & Coke Co. v. McEnery, 36 Amer. Rep., 662; Wharton on Negl., sec. 214, and cases cited; Mehan v. Syracuse, etc., R. R. Corp., 73 N.Y. 585.

This error was not cured by the latter part of the instruction, which is to the effect that the plaintiff might recover if he was assured that the danger would be remedied in a reasonable time, and he, relying thereon, continued to work, because the jury may have found, and most likely did find, that such promise was never made, but gave the plaintiff the verdict on the theory that the entry, although dangerous, and well known to be so to the plaintiff, yet was not very dangerous.

This instruction was also erroneous in that it involved the hypothesis that evidence was given that a promise had been made to repair the defect in a reasonable time, or in some stated time, which the jury might find to be reasonable, when such was not the fact.

If the jury found that the promise was made, but that it was indefinite as to time, as it clearly was if made at all, then it furnished no ground of recovery: 38 Amer. Reports, 242, supra.

Mr. Arthur Brown and Mr. E. B. Critchlow, for respondent.

Cases cited by appellants as to excessive damages are merely individual cases. For elements of damage we refer to: Berg v. C. M. & St. P. R. R., 50 Wis. 419; Salen v. Virginia City R. R., 13 Nev. 107; 1 Sutherland Dam., 810; Atchison R. R. Co. v. Moore, 65 Am. & Eng. R. R. cases, 321; Bower v. U. P. R. R. Co., 7 Pac. Rep., 251; Knapp v. Sioux City R. R., 32 N.W. 18.

Court may remit part of damages: 1 Sutherland Dam., 812; Case of Koeltz v. Blochman, 46 Mo. 320, ignored by Johnston v. Morrow, 60 Mo. 339 and Sharp v. Johnston, 76 Mo. 674.

The evidence as to the promise to remedy defects, was that the foreman assured plaintiff that the level would be fixed as soon as the rush was over, and at the same time plaintiff was urged to go on and work. See as to the effect of such promise the following cases: Hough v. R. R. Co., 100 U.S. 225; Patterson v. R. R. Co., 76 Penn. State, 289; Conroy v. Iron Works, 62 Mo. 35; Sherman & Redfield Neg., Sec. 96.

The seventh instruction given by the court (Record page 120), is based upon a request made by counsel for defendant. As given, the charge comprises all that was asked, and that modification of it by the use of the word very is a modification which operated solely in the interest of the defendant. But even as requested, the law is not correctly stated. See cases above cited: Snow v. R. R. Co., 8 Allen, 441; Huddleston v. R. R. Co., 49 N.Y. 536; Patterson v. R. R. Co., 76 Penn. State, 289.

Even if plaintiff knew of the risk he was running, nevertheless if this risk was incurred on account of negligence on the part of the defendant in allowing the roof of the entry to become unsafe, the case must go to the jury. It is not for the court to say, as a matter of law, that working any entry with knowledge is of itself contributory negligence. See cases above cited, also: Patterson v. Wallace, 2 Thomson Neg., 1011, 1015; R. R. Co. v. Stout, 17 Wallace, 657; Thurber v. Harlem R. R. Co., 60 N.Y. 327; 42 Wis. 583, 599.

If plaintiff was commanded by his superior, the representative of defendant, to do a certain piece of work, in particular way, immediately and under circumstances themselves dangerous, the plaintiff was not guilty of negligence in obeying orders: 36 Iowa 278; 24 F. 906.

HENDERSON, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

HENDERSON, J.:

The plaintiff seeks in this action to recover against the defendant damages on account or a personal injury which he received while in its employ as a laborer in its coal mine. The evidence on the part of the plaintiff tended to show, that the defendant was the owner of and was operating a coal mine known as the "Grass Creek Mine;" that the mine consisted of extensive under-ground workings, requiring the services of a large number of miners and workmen; that during the time in controversy one Thomas Thomas was defendant's foreman, and as such had entire supervision of the mine and all the workings, employed and discharged laborers, and prescribed their duties, that the plaintiff was a practical coal miner, and had been for some years: that on the first day of December, 1884, the plaintiff applied to Thomas for employment, and was employed by him in defendant's mine; that the openings to and from the mine were through various entries, which were designated by numbers, and all entering on the vein of coal on an incline and were separated from each other by columns or partitions left in the coal vein to support the roof, these partitions being know to the miners as "ribs;" that through all these entries tracks were laid and horse cars run for a great distance into the mine, for the purpose of bringing out the coal; that at the time the plaintiff was employed, for some time before, and from that time up to the time of the injury, there was going on in said mine what is known among miners as a "squeeze," which consists of the settling of the base of the columns or partitions left to support the roof into the softer material of the floor, thereby causing the floors in the spaces to heave, and masses of rock and coal to fall from the top and sides, rendering them more or less dangerous; that this process was more apparent in the fifth entry, making it more dangerous; than the other portions of the mine; that when plaintiff commenced work he was, with other workmen, under the immediate supervision of the...