Seley v. Southern Pac. Ry. Co.

• Citation: 23 P. 751,6 Utah 319
• Court: Supreme Court of Utah
• Decision Date: 04 March 1890
• Parties: ISABELLA SELEY, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

23 P. 751

6 Utah 319

ISABELLA SELEY, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

Supreme Court of Utah

March 4, 1890

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Messrs Marshall and Royle for the appellant.

Mr. E M. Allison, Jr., and Messrs. Kimball and White for the respondent.

ZANE C. J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

ZANE, C. J.:

This action was instituted by the administratrix of the estate of the late William H. Seley, to recover damages to his widow and children in consequence of his death, occasioned, as alleged, by the negligence of the appellant. The deceased was employed by the appellant as a conductor on its freight train, and while endeavoring to make a coupling at Wells, a station in Nevada, one of his feet became fastened in an open frog, and he was run over by a car and killed.

It appears from the evidence that blocked or cast-iron frogs are used in many tracks. In these the point of the space between the rails is filled with wood or other material, so that the foot will not be held. The block is a simple device, practicable and inexpensive, and prevents the danger. It is called a "safety block." There were six or seven tracks at Wells, and three frogs, and at such a place couplings are required to be made promptly, at all times of the day and night, and the exclusive attention is necessarily directed to the coupling. The individual, at such times, cannot act with deliberation, and his eye, as well as his attention, is necessarily drawn to the coupling. Open frogs, in which the foot is liable to be caught, and from which a release is difficult without more time than a man has when making a coupling, necessarily add to his hazards. The safety block has been in use for years past. It is a simple device for the protection of employees engaged in a very hazardous employment. It is no longer an experiment. It is said that the employer is not bound to employ the latest improvements in machinery; that he is only required to see that the instrumentalities he does use are safe and suitable. An old machine or device may have been considered safe and suitable, as compared with old machines or devices, but, as compared with newer and more perfect ones, it may not be considered safe or suitable; for the human mind is ever engaged with new inventions, and human ingenuity, with wider experience, additional skill, and with ceaseless energy, removes old impediments and dangers in perfecting the old, as well as by inventing the new. While a railway company is not required to experiment with novel inventions alleged to be safer and more suitable, yet, when experience has demonstrated that their use does remove hazards, and preserves the lives of their employees engaged in dangerous employments, prudence, as well as humanity, demands that such new agencies shall be used. Such companies have no right to continue to employ such dangerous and destructive agencies as wound and kill their employees, when safer and better ones are in use. We are of the opinion that the appellant was guilty of negligence in using the open frog.

It is said that the defendant did not insure the deceased against injury from the dangerous agencies which it necessarily employed, and that he assumed the ordinary risks incident to his employment. While this is so, the deceased did not assume the risks from defendant's negligence. Ordinary risks are such as remain after the employer has used all reasonable means to prevent them. The ordinary risks of an employment differ from the risks from the employer's negligence. The injuries resulting to the employee from the ordinary risks of his employment he must bear, but those that come to him alone from the employer's negligence the latter must bear. In not using the safety block, the appellant neglected a reasonable means to prevent injury to his employees in making couplings, and if the deceased, without his fault, lost his life from that neglect, the defendant must pay his wife and children their loss; the defendant must bear it.

It is claimed that the deceased, as conductor, was not authorized to couple cars, and that, therefore, the defendant is not liable. It appears from the evidence that the conductor of a freight train is expected to use all diligence to get his train through on time, and that in so doing he assists in switching and making couplings, if he deem it necessary. His duties are somewhat general. It appears from the evidence that Seley's train had come into the station late, and that one of the brakemen had made two attempts to couple a car on, and had failed, and that the other brakeman had failed once; that five or ten minutes had been lost in these attempts; and that the deceased, who had been conductor about seven years, and brakeman a number of years before that, then said he believed he could make it, and then made the effort. Under these circumstances, as a diligent and faithful freight conductor, we think he was authorized by the terms of his employment to make the effort. To have stood by under such circumstances, without bringing to bear his experience and skill, might have been regarded as an indication of indifference, and a lack of zeal in his employer' business.

It is also said the deceased ought to have informed his employer of the open frogs in use in its track, and that they were dangerous, and to have exacted a promise to repair in a reasonable time; and without such a promise, or in case of a failure to comply with it if made, he should have left the appellant's employ. No notice was necessary, because the deceased had no right to assume that his employer was ignorant of the open frogs in its track. He must have known that the company had failed to employ the safety block for fifteen or twenty years. He had been brakeman and conductor on its road for the greater part of that time. Nor do we think that the deceased assumed the risk from the open frog by entering the defendant's employ with it in use, or by continuing in such employ after he knew the safety block would remove its perils. Imminent danger from a defect in a machine or other instrumentalities, which could...