Stone v. Union Pac. R. Co.

• Decision Date: 11 April 1907
• Docket Number: 813
• Citation: 89 P. 715,32 Utah 185
• Court: Utah Supreme Court
• Parties: STONE v. UNION PACIFIC RAILROAD COMPANY

89 P. 715

32 Utah 185

STONE v. UNION PACIFIC RAILROAD COMPANY

No. 813

Supreme Court of Utah

April 11, 1907

APPEAL from District Court, Second District; J. A. Howell Judge.

Action by A. I. Stone, administrator of the estate of Jas. H Winslow, deceased, against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith, Jno. G. Willis, and C. R Hollingsworth for appellant.

APPELLANT'S POINTS.

In Patton v. Railroad, 179 U.S. 658, the court speaking of proximate cause, said; "Where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs." (Sutherland v. Railroad, 125 N.Y. 737; Sharter v. Railroad, 121 Ala. 158, 25 So. 853; Gleason v. Railroad, 73 F. 647; Railroad v. Poirier, 167 U.S. 48; Railroad v. Barry, 84 F. 944; Bryant v. Railroad, 81 Hun 164; Smithson v. Railroad, 71 Minn. 216, 73 N.W. 853; Railroad v. Doyle, 60 Miss. 977; Hoover v. Railroad, 191 Pa. 146, 43 A. 74; Vizelich v. Railroad, 126 Cal. 587; Railroad v. Wooley, 77 Miss. 927, 28 So. 26; Railroad v. Henderson, 134 Ind. 636, 33 N.E. 1021; Burns v. Coal Co., 27 W.Va. 285, 55 Am. 304.)

Maginnis & Corn for respondent.

RESPONDENT'S POINTS.

The action is provided for by section 3449, Revised Statutes Wyoming, 1899, which requires: "Every such action shall be brought by and in the name of the personal representative of such deceased person."

This court has held that such action when brought in Utah must be brought by the personal representative. (Thorpe v. Coal Co., 24 Utah 475. In re Loham, 85 P. 445; Utah Sav. & Trust Co. v. Diamond, 73 P. 524.)

The action therefore in Wyoming and in Utah is one created by the statute in favor of the personal representative and he being the proper plaintiff it may be brought at his place of residence. It is the cause of action that is the test, not the fruits of the action, and the cause of action is given to him. This identical question was before the Circuit Court of Appeals and thoroughly reasoned out in Railroad v. Thiebaud, 52 C. C. A. 538, 114 F. 918; Railroad v. Smith, 85 S.W. 1173.

The guardian and not the ward is the party whose citizenship governs where the guardian has the right to sue in his own name. (Railroad v. Eckman, 187 U.S. 429.)

As pointed out in that case--which makes the distinction --he is not a mere figurehead or nominal party, but is an interested party. (Rice v. Houston, 13 Wall. 66.)

So also, the citizenship of an administrator and not that of his beneficiary governs. (Harper v. Railroad, 36 F. 102; Goff v. Railroad, 36 F. 299; Miller v. Sands, 44 N.W. 301; Bishop v. Railroad, 117 F. 771; Wilson v. Lumber Co., 103 F. 801; Popp v. Railroad, 96 F. 465; Bank v. Fitzgerald, 94 F. 16; Bangs v. Loveridge, 60 F. 963; DeForest v. Thompson, 40 F. 375.)

The same rule is held to apply to a trustee. (Mass. Co. v. Twp., 115 U.S. 283; Dodge v. Tulleys, 114 U.S. 451; Railroad v. Blatchford, 11 Wall. 172; Pepper v. Fordyce, 119 U.S. 469; Pennington v. Smith, 78 F. 399; Griswold v. Bacheller, 75 F. 470; Ship v. Williams, 62 F. 4; Rush v. Brittle, 58 F. 611; Morris v. Lindauer, 54 F. 23.)

"The defendant may appear specially to object to the jurisdiction of the court, and if, by motion or other form of application to the court, he seeks to bring its powers into action, except on the question of jurisdiction, he will be deemed to have appeared generally." (Cropsey v. Wiggenhorn, 3 Neb. 108; Schaefer v. Waldo, 7 O. St. 309; Elmer v. Hiatt, 4 G. Greene [Ia.], 439; Schell v. Leland, 44 Mo. 289; Lamphey v. Beavers, 25 Ala. 535; Abbott v. Semple, 25 Ill. 107.)

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

1. This action was brought in the county of Weber, state of Utah, by the plaintiff, for negligently causing the death of his intestate, James H. Winslow, near Azusa, in the state of Wyoming. It is alleged in the complaint, and admitted in the answer: That the defendant is a corporation organized under the laws of the state of Utah, and was operating a railroad between Ogden City, Utah, and Omaha, Neb. That at the time of the accident the deceased was in the employ of the Pacific Express Company as an express messenger, and while being transported on one of the cars of the defendant from Green River, Wyo., to Ogden City, he was also in the employ of the defendant, rendering services for it in the handling of and caring for baggage of passengers carried and transported by the defendant. The deceased was on a passenger train designated as No. 3 running west from Green River. That train collided with a freight train designated as "No. 1661," running east from Evanston, Wyo. The alleged acts of negligence submitted to the jury were that the train dispatcher at Evanston sent a telegraphic order to Granger, a station between Evanston and Green River, to the effect that No. 3 would run one hour and thirty minutes late; that the receiving operator in writing said message for delivery to the engineer and conductor of the freight train transcribed the same so as to read that No. 3 would run one hour and fifty minutes late, and, when so transcribed, delivered the message to the engineer and conductor of the freight train, and that they, relying upon such order and direction, and believing that there was ample time in which to run their train so as to meet and pass No. 3 at Azusa, started to make the run; and that by reason of the false information contained in the telegram, together with other acts of negligence, the collision occurred. It was further alleged that the defendant negligently sent out an engine which was attached to and propelled the freight train, in that the engine was so defective and out of order that it leaked steam so badly as to envelop the engine with steam, and so obscured the view of the engineer and fireman on the freight train that they could not see the track and objects ahead of the engine, and so obscured the headlight of the engine of the freight train that it could not be seen by those on an approaching train. The defendant denied the alleged acts of negligence, and pleaded that the collision and the death of the deceased were due to the negligence of fellow servants; alleged the assumption of risk and lack of jurisdiction of the court to try the cause; and further pleaded a general written release entered into between the deceased and the Pacific Express Company, by the terms of which the deceased agreed with the express company and the defendant that neither should be liable to the deceased, his heirs, executors, administrators, or assigns for any act of negligence, either of the express company or of any other carrier employed by the express company, including the defendant, and that the deceased, by the terms of said contract, had released the defendant from any and all liability for any and all acts of negligence which might in any wise cause, or relate to, any damage, injury, or death which might result to the deceased while engaged in his employment.

2. The evidence shows that the freight train started cast from Evanston at about 5:25 p. m., on November 11, 1904. Steam in large quantities escaped from the valve stems and piston heads of the engine propelling the freight train, so as to completely envelop it and obscure the headlight, thereby preventing persons on the engine from seeing the track in advance of the engine, or its headlight by those on an approaching train. A Mr. Lowham, a witness for the plaintiff testified that he was locomotive engineer; that he had been in the employ of the defendant for about sixteen years; that he had operated the engine in question for several months prior to the accident; and that the last time that he ran the engine was on the 9th day of November, at which time he made a round trip with it between Evanston and Green River. After describing the cylinders and valve chambers of and their position on the engine, and otherwise describing the different parts and character of the engine, he was asked by plaintiff's counsel. "Q. On that occasion [referring to the trip November 9th] I will ask you whether you noticed, or had occasion to notice, whether steam was escaping from the cylinder on that engine or not?" This was objected to as being irrelevant, incompetent, and immaterial. The objection being overruled, the witness answered: "A. Yes; the steam was escaping-- escaping bad--from the front cylinder heads. There was some from the pistons, and the valve stems blew bad too. Q. What, if anything, especially called your attention to it on that trip? A. Why, I couldn't see the track ahead of the engine, and I would have to go out on the front of the engine and ride on the pilot in order to see the track ahead of the engine. Q. Did you do that? A. I did do it. Q. How did it happen that you did that? (Objected to as irrelevant, incompetent, and immaterial.) A. I thought there was a train ahead of me going up Peru hill that night, and I couldn't see whether there was or not, and didn't like to shut the engine off, so I went out on the pilot to find out where they was. After I had...