Wright v. Southern Pac. Co.

• Decision Date: 24 June 1897
• Docket Number: 809
• Citation: 15 Utah 421,49 P. 309
• Court: Utah Supreme Court
• Parties: JAMES ALFRED WRIGHT, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

49 P. 309

15 Utah 421

JAMES ALFRED WRIGHT, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

No. 809

Supreme Court of Utah

June 24, 1897

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action of tort by James Alfred Wright against the Southern Pacific Company. Judgment for plaintiff, defendant appeals. (The same case is reported in 14 Utah 383.)

Affirmed.

Marshall & Royle, for appellant.

Richards & Macmillan and A. E. Pratt, for respondent.

MINER J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant in failing to furnish a fireman in addition to the engineer to operate its engine, and in the engineer negligently failing to obey the signals given, while acting in the double capacity of engineer and fireman. The record shows that the plaintiff was a switchman in the employ of the defendant at the time of the accident. On the morning of the 11th day of August, 1892, about 1:15 o'clock, he was performing his duties as switchman, and, for the purpose of uncoupling them, went in between two cars of a freight train which was standing upon a slight grade, so that the links were drawn tight. Being unable to uncouple them on account of the grade, he came out from between the cars, and with his lantern signaled the engineer, who performed the duties of fireman as well as engineer, to back up slowly, and then stepped in again between the cars to pull the pin the moment the slack came, and stood with his back towards the engine and one hand upon the rung of the ladder on the car in front of him. The engineer saw and obeyed the signal, but the train came back with a jerk, and plaintiff's right heel was caught and held by the brake beam. He immediately grasped the rung of the ladder with his other hand, and signaled the engineer with his lantern to stop, throwing his lantern out to one side. This signal was not seen by the engineer, who at this particular moment was necessarily engaged in shoveling coal into the fire,--a duty which should have been performed by a fireman,--and the plaintiff was dragged for some distance until his hands were jerked from their hold upon the ladder, and he was thrown under the wheels of the car, which passed over his leg, necessitating its amputation at a point about seven inches above the knee.

On the trial of the case Mr. Doughty was called as a witness for the plaintiff, and gave testimony tending to show that he was the engineer operating the engine at the time of the accident and had been so employed for about one year; that he had been in the employ of the defendant company since 1885; that he was car inspector for the defendant the first year at Carlin; had worked as helper in the machine shops for several months; worked as fireman on the road for three years; again as repairer for several years at different points on the road; that it was his duty as helper to take care of the engines and fix them up, and prepare them to go out; since July, 1891, had charge of the switch engine, and run it at night; that his duty was to run the engine as engineer, and do the firing when needed. No fireman was furnished on the engine at the time of the accident. Thereupon the plaintiff asked the witness the following question: "Now, Mr. Doughty, I want to ask you, in your opinion, in view of the work that had to be done in the Carlin yard, and was done there every day, and that was being done at the time of the accident, whether, in your opinion, it was necessary, for the safety of the employes,--switchmen and others,--that there should be a fireman and engineer upon the engine when she was in motion and at work." The question was objected to "as immaterial and irrelevant, and the witness is not shown to be competent." The objection was overruled, and an exception taken by defendant. Appellant now insists that this ruling was prejudicial error, and that the respondent had no right to substitute the opinion of the witness for that of the jury. The respondent insists that this question was passed upon on the former hearing, reported in 14 Utah 383, 46 P. 374, and that such decision has become the law of the case. Upon this question we find the same character of evidence was given at the preceding trial, but it does not appear from the abstract in the case that there was any objection to the testimony, although there was an assignment of error upon the admission of the testimony. It is evident that this court did not pass upon this question upon the former appeal. It is not usual or necessary for the supreme court...