Shay v. Union Pac. R. Co.
| Citation | 47 Utah 252,153 P. 31 |
| Decision Date | 12 July 1915 |
| Docket Number | 2714 |
| Court | Utah Supreme Court |
| Parties | SHAY v. UNION PACIFIC R. COMPANY |
Rehearing denied November 30, 1915.
Appeal from District Court, Second District, Hon. N. J. Harris Judge.
Action by A. M. Shay against the Union Pacific Railroad Company.
Judgment for plaintiff. Defendant appeals.
AFFIRMED.
P. L Williams, Geo. H. Smith, H. B. Thompson and C. R. Hillingsworth for appellant.
D. E. Rathbun and David Jensen for respondent.
This was an action to recover damages from the Union Pacific Railroad Company for the destruction of a carload of what are called "emigrant movables," including four horses, while in transit on the railroad of said company from Eaton station, Colo., to Idaho Falls, Idaho. The whole history of the shipment is, with much particularity, set forth in the complaint. It is, however, only deemed necessary to refer to the acts of negligence complained of, which are alleged as follows:
"That at the said grade in Wyoming the defendant, by its agents and employees connected a second or helping engine in said train for the purpose of assisting in drawing said train up and over what is there known as the 'Sherman Hill'; that said defendant carelessly and negligently coupled the said second or helping engine closely in front of said car in which plaintiff's goods were loaded; that the said car in which plaintiff's goods were located was a defective car, having holes in the roof and in the sides thereof, and that said defendant carelessly and negligently used said defective car in transporting and carrying plaintiff's aforesaid property; that the said second or helping engine was defective and not properly equipped with sufficient spark arresters, and did at that time emit many sparks, which fell in and upon the said car in which plaintiff's goods were being carried, and did then and there, being on or about the 11th day of February, 1913, in Albany county, state of Wyoming, on the said 'Sherman Hill,' set fire to the contents of the said car; * * * that after the discovery of said fire the defendant, its servants and employees, did not use ordinary care in protecting said car of goods, and carelessly and negligently, after the discovery by them of a smoldering fire in said car, opened the windward door and permitted a strong wind, then blowing, to blow through said open door, into and upon said smoldering fire, thereby fanning it into an uncontrollable fire, and that said fire at the time it was so discovered by them could have, by ordinary skill, been controlled, quenched, and put out, and thereby saved plaintiff's said property from destruction, and that said fire consumed and destroyed the entire contents of said car, to the damage to this plaintiff of the total sum as above stated in itemized amounts aggregating the total sum of $ 3,643; that said fire was caused by defendant in carelessly and negligently operating the train by placing said defective engine so near said car and in using said defective car, thereby throwing fire in and upon said car."
The italicized part set forth above was an amendment allowed by the court during the trial and to which we shall refer again hereafter.
The defendant answered the complaint, admitting that it received the chattels described therein for transportation from Eaton, Colo., to Idaho Falls, Idaho, admitted that said chattels were destroyed by fire in the state of Wyoming while in transit, and admitted that said chattels weighed not to exceed "13,300 pounds." It denied all other allegations of the complaint, and pleaded the provisions of the act of Congress relating to interstate commerce. It also pleaded the contract of shipment as contained in the bill of lading wherein the value of the horses shipped was limited to $ 100 each, that the shipper agreed to inspect the car in which said chattels were shipped and report all defects, and that defendant, under the provisions of said contract, was liable only for willful or actual negligence, and also pleaded contributory negligence on the part of the respondent.
Upon a trial to a jury they found the issues in favor of the plaintiff, awarding him damages in the sum of $ 1,906, on which sum they allowed legal interest from the date of the destruction of the chattels to the time of trial, amounting to the sum of $ 165.18. The court entered judgment for the principal and interest, amounting to the sum of $ 2,071.18, from which the defendant appeals.
A large number of errors are assigned and insisted upon, but we shall notice only such as we deem material, or which, in our judgment, affect the substantial rights of the parties.
The first assignment we shall notice is that the court erred in permitting the respondent to amend his complaint in the particulars we have indicated by the italics. The allowance of the amendment, although irregular as to time, was nevertheless within the sound discretion of the trial court. A careful inspection of the whole proceedings relating to the amendment and evidence adduced in support thereof leads us to the conclusion that the appellant was not prejudiced thereby. Neither have counsel pointed out any particular reason why appellant was prejudiced thereby. Of course, appellant might have been prejudiced by permitting the jury to find it guilty of the negligence therein alleged, when, as a matter of fact, it was not so guilty, but that is a matter which we shall consider hereafter. This assignment, therefore, cannot prevail.
It is next urged that the court erred in refusing to grant appellant's motion for a directed verdict, for the reasons: (1) That the respondent had failed to prove that the loss and damages complained of were caused through the negligence of the appellant; (2) that respondent had failed to prove any negligence on its part; and (3) for the further reason that respondent "was guilty of contributory negligence with reference to the selection and use by his written assent of the car * * * and failure to report to the agent * * * of the carrier that there were not other or visible defects in the car."
In this connection it is insisted that the action is one for negligence, and hence the burden of proof was upon the respondent. That, no doubt, is the law, and the case was submitted to the jury upon that theory.
We cannot, within reasonable limits, set forth the evidence produced upon the trial relating to the negligence, and it must therefore suffice to say that, in our judgment, there is at least some substantial evidence in support of every element of negligence alleged in the complaint. In view of that, we are precluded from weighing the evidence or from passing upon the effect that should be given to any particular statements or kind of evidence produced at the trial. All those matters were for the jury to pass on, and we are concluded by their finding. The evidence being sufficient to take the case to the jury, the motion to direct a verdict upon the two first grounds was properly denied. We shall hereafter refer to some particular portions of the evidence in connection with the propositions discussed.
It is vigorously contended that under the repeated rulings of the Supreme Court of the United States, and especially as those rulings are reflected in the cases of Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257, Kansas City Southern Ry. Co. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683, M. K. & T. Ry. v. Harriman, 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690, Boston & Maine R. v. Hooker; 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L. R. A. 1915B, 450, and in the very recent case of O. S. L. R. Co. v. Homer, 235 U.S. 693, 35 S.Ct. 207, 59 L.Ed. 429, in which that court reversed the case of Homer v. Railroad, 42 Utah 15, 128 P. 522, the court erred in not granting the motion for the reason we have quoted. This contention is based upon the stipulations contained in the bill of lading which is the receipt or bill of lading provided for in the amendment made in section 20 of the original Interstate Commerce Act and which amendment is specially referred to in the case of Adams Express Co. v. Croninger, supra. It is there, in substance, held that the shipper is bound by the provisions or stipulations contained in the bill of lading. The provisions or stipulations in the bill of lading issued to respondent in the case at bar, and which are relied on by appellant, are the following:
There was a further provision in the bill of lading, namely, that the chattels in the car with the four horses, as counsel for appellant puts it, "were shipped under a...
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