Wells v. Denver & RIO Grande Western Railway Co.

• Decision Date: 12 September 1891
• Citation: 7 Utah 482,27 P. 688
• Court: Utah Supreme Court
• Parties: EMMA C. WELLS, ADMINISTRATRIX, RESPONDENT, v. DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

27 P. 688

7 Utah 482

EMMA C. WELLS, ADMINISTRATRIX, RESPONDENT, v. DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

September 12, 1891

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

Affirmed.

Messrs Bennett, Marshall and Bradley, for the appellant.

Mr Joseph L. Rawlins and Messrs. Reilly and Kane, for the respondent.

ANDERSON J. BLACKBURN, J., and MINER, J., concurred.

OPINION

ANDERSON, J.

Plaintiff brings this action as administratrix of the estate of her deceased husband, Harvey A. Wells, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. Plaintiff's decedent was a brakeman in the employ of the defendant, and at the time of the accident was attempting to couple two freight cars together, when, owing to the defective condition of the coupling attachments and timbers connected therewith, the drawhead of one car passed over the draw-head of the other, allowing the cars to come together, whereby he was fatally injured. The defendant, by its answer, denied any negligence on its part, and alleged contributory negligence on the part of the decedent. There was a trial by jury, verdict and judgment for plaintiff, and defendant appeals.

The defendant offered no evidence in its behalf. Burnett, another brakeman on the same train, testified that he was standing about twenty feet away, and that immediately before the accident the condition of the draw-head, draw-bolts, and timbers connected therewith were apparently in a safe condition. Cahoon, another witness for plaintiff, and who had charge of the defendant's yard at Germania, testified that at a distance of four or five feet away he noticed the defective condition of one of the cars to be coupled, before the accident; that the appearance of the bumper or draw-head of the standing car indicated that it might give way in making an ordinary coupling, and that he would not have attempted to make the coupling. On this evidence the defendant requested the court to grant a non-suit because of Wells' negligence in attempting to make the coupling, which the court refused to do, and such refusal is assigned for error, and the same point is specified as a reason why the evidence fails to justify the verdict. We think there was no error, under the evidence, in the court overruling the defendant's motion for a non-suit, and submitting the question of the negligence of the defendant and of the contributory negligence of the plaintiff's decedent to the determination of the jury; and, after a careful examination of all the evidence in the case, we think the jury were justified in finding, as they must necessarily have done in order to find the verdict which they returned, that the defendant was guilty of negligence, and that the plaintiff's decedent was not guilty of contributory negligence.

Several witnesses were permitted to testify against the objections of defendant to the good reputation of plaintiff's decedent as a railroad man; and this, it is contended, was error. It is argued by counsel that, if decedent's reputation was ever so good, it would not excuse or palliate his negligence in the particular case. We think this would be true if considered alone with reference to...