Wright v. Southern Pacific Co.

• Citation: 46 P. 374,14 Utah 383
• Decision Date: 23 September 1896
• Docket Number: 691
• Court: Utah Supreme Court
• Parties: JAMES ALFRED WRIGHT, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

46 P. 374

14 Utah 383

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

No. 691

Supreme Court of Utah

September 23, 1896

Appeal from the Fourth district court, Territory of Utah. Hon. H. W Smith, Judge.

Action by James A. Wright against the Southern Pacific Company for injuries received while plaintiff was in the employ of defendant as a brakeman. From a judgment for the plaintiff defendant appeals.

Reversed and remanded.

Marshall & Rayle, for appellant.

"Knowledge of the condition of things on the part of the servant, and his continuance in the service after such knowledge, exempt the master from all liability to the servant for an injury growing out of the condition of things." Naylor v Chicago, etc., R. R. Co., 53 Wis. 661; Birmingham, etc., R. Co. v. Allen, 99 Ala. 359; I. C. R. R. Co. v. Swisher, 53 Ill.App. 418; Simmons v. Chicago, etc., R. R., 110 Ill. 341, 347-8; Stafford v. C., B. & Q. R. R. Co., 114 Ill. 244, 247; Hughes v. Winona, etc., R. Co., 27 Minn. 137, 139, 140; Mundle v. Mfg. Co., 86 Me. 400, 406-409; C., B. & Q. R. Co. v. Merker, 36 Ill.App. 196, 213; I. C. R. R. v. Morrissey, 45 Ill.App. 128, 137; Ragon v. Toledo, etc., R. R. Co., 97 Mich. 265; LaPiene v. Ry. Co., 99 Mich. 212; Carey v. Sellers, 41 La. Ann. 500; Sweeney v. B. & J. Co., 101 N.Y. 520; Kaare v. T. S & I. Co., 139 N.Y. 369, 377; Cohn v. McNulta, 147 U.S. 238; Bunt v. Gold Mining Co., 138 U.S. 483; Dillon v. U. P. R. R., 3 Dillon 319; Kielley v. Belcher S. M. Co, 3 Sawyer 500; Gibson v. Erie Railway Co., 63 N.Y. 449; DeForest v. Jewett, 88 N.Y. 264; Sweeney v. Berlin & Jones Envelope Co., 101 N.Y. 520; Williams v. Del. L. & W. Rd. Co., 116 N.Y. 628; Powers v. N.Y. L. E. & W. R. R. Co., 98 N.Y. 274; Anthony v. Leeret, 105 N.Y. 591; Shaw v. Sheldon, 103 N.Y. 667; Hickey v. Taaffe, 105 N.Y. 26; Findell v. Del. L. & W. Rd. Co., 129 N.Y. 669; McGlynn v. Bradie, 31 Cal. 38, 382.

But there are a number of cases specifically holding that a servant assumes the patent risk arising from an insufficient number of employes to assist in connection with his employment, when he consents to engage ad continue in the employment with full knowledge of the limited number of assistants in use, or of a duplication of work imposed upon one employe by the master or of the absence of one or more assistants believed to be needed for the work. Long v. Coronado R. R. Co., 96 Cal. 273; Skippe v. Eastern Ry. Co., 9 Ex. 223; cited 31 Cal. 382; Atchison T. & S. R. Co. v. Schroeder, 47 Kan. 315; Southern Kans. Ry. Co. v. Drake, 23 Kan. 1; Chicago & N.W. Ry. Co. v. Donahue, 75 Ill. 166; Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 542; International, etc., R. R. Co. v. Beasley, 29 S.W. R. 1121-1122; Texas & P. R. R. Co. v. Rogers, 57 F. 378; Richmond & D. R. Co. v. Mitchell, 92 Ga. 77, 81; Schnipp v. Central R. R. Co., 85 Ga. 595-6.

The following cases illustrate the principle that a railroad employe engaged in coupling or uncoupling cars assumes all obvious risks connected with his employment. Kohn v. McNulta, 147 U.S. 241; Tuttle v. Milwaukee Ry., 122 U.S. 189; Southern Pac. Co. v. Seley, 152 U.S. 145; Appel v. Buffalo, etc., R. R., 111 N.Y. 550; Spencer v. N.Y., etc., R. R. Co., 67 Hun 196; Louisville & N. R. R. Co. v. Boland, 96 Ala. 626; Dysinger v. Cin., etc., R. Co., 93 Mich. 646; Davis v. B. &. O. R. R. Co., 152 Pa. St. 304; Louisville & N. R. R. Co. v. Gowes, 85 Tenn. 465; Toledo, W. & W. Ry. Co. v. Black, 88 Ill. 112; McLaren v. Williston, 48 Minn. 299; Scott v. Oregon, R. & N. Co., 14 Oregon 211; Day v. Toledo, etc., Ry. Co., 42 Mich. 523; Smith v. Potter, 46 Mich. 258; Northern Cent. Ry. Co. v. Husson, 101 Pa. St. 1.

The following cases establish and illustrate the rule that any other servant of a railroad company assumes the risk of the negligence of an engineer employed by the same company in the conduct of its business: Randall v. Baltimore & O. R. R. Co., 109 U.S. 478; Baltimore & O. R. R. Co. v. Baugh, 149 U.S. 368; Northern Pac. R. R. v. Hambly, 154 U.S. 355; Ladd v. New Bedford R. R. Co., 119 Mass. 412; Clifford v. Old Colony R. R., 141 Mass. 564; Hobbs v. A. & N. R. R. Co., 107 N.C. 1; Gormley v. Ohio & Miss. Ry., 72 Ind. 31; Porter v. Silver Creek, etc., Co., 84 Wis. 418; Houston, etc., Ry. v. Rider, 62 Tex. 267; Tex. & P. Ry. Co. v. Harrington, 62 Tex. 597; Gulf, etc., R. R. Co. v. Blohn, 73 Tex. 637; Blake v. Maine Cent. R. R., 70 Me. 60.

In the following cases, it is held that one who is injured in coupling or uncoupling cars while in motion, in violation of the rules of the railroad company, is guilty of contributory negligence, which is fatal to his right to recover for a resulting injury. Pryor v. L. & N. R. R. Co., 90 Ala. 32; Richmond & Danville R. Co. v. Thomason, 99 Ala. 471; Grand v. Railroad Company, 83 Mich. 564, 570-71; Schaub v. Hannibal & St. J. Ry. Co., 106 Mo. 74, 92; Sedgwick v. Ill. Cent. Ry. Co., 73 Iowa 158, 160; Id. 76; Johnson v. Chesapeake & O. Ry. Co., 38 W.Va. 206; Railway Co. v. Smith, 89 Tenn. 114; Railway Co. v. Rice, 51 Ark. 468, 477; Lockwood v. Chicago & N.W. Ry. Co., 55 Wis. 51; Sloan v. Georgia Pac. Ry. Co., 86 Ga. 15; Loranger v. Lake Shore & M. S. Ry. Co., 62 N.W. 137.

The duty of compliance with rules is not waived by the mere fact that some controlling official, or the immediate superintendent of the work, has knowledge of the failure to comply, and assents thereto. Atchison, etc., R. R. Co. v. Reesman, 60 F. 370, 378; Railroad Co. v. Langdon, 92 Pa. St. 21; Virginia Midland R. Co. v. Roach, 83 Va. 375.

The verdict for damages in the sum of $ 20,000 was excessive. Union Pac. R. R. Co. v. Millikin, 8 Kan. 647; Peri v. N.Y. Central, etc., R. R. Co., 86 Hun 499; Holden v. Penn. R. R. Co., 7 Kulp (Pa.) 52; Pfeiffer v. Buffalo R. Co., 24 N.Y.S. 90; Sobieski v. St. Paul & D. R. Co., 41 Minn. 169; Tex. & Pac. R. Co. v. McAtee, 61 Tex. 965; Mo. Pac. R. Co. v. Dayer, 36 Kan. 58.

Richards & Macmillan, for respondent.

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

OPINION

BARTCH, J.:

This action was brought to recover damages for personal injuries which the plaintiff claims he received through the negligence of the defendant. The trial of the case resulted in a verdict in the sum of $ 20,000, against the defendant. Upon the hearing of the motion for a new trial, the court reduced that sum to $ 15,000, and, on plaintiff consenting to the reduction, overruled the motion, and entered judgment accordingly. This appeal was taken from the judgment, and from the order overruling the motion for a new trial.

It appears from the evidence, substantially, that the plaintiff received the injuries complained of on the 11th day of August, 1892, while acting in the capacity of switchman under the employment of the defendant, in its yards at Carlin, Nev.; that at the time of the accident he was 28 years old, strong, active, and earning $ 80 per month; that he had been so employed for about a year, and all the time had worked with the same switch engine which occasioned the accident; that the engine was operated without a fireman, the engineer performing the duties of fireman himself during the entire time of plaintiff's employment, which fact was known to the plaintiff, who continued to work without making any complaint to the defendant or any of its agents because the engine was thus being operated; that the engine was defective and at one time during plaintiff's employment was sent to the shop for repairs, but after its return it was still defective in its cylinder, and its flues were leaking, in consequence of which the engineer was required to give the fire and steam more attention than would have been necessary if the engine had not been defective, but such condition of the engine, and the fact that it required more attention because thereof, were unknown to the plaintiff; that the plaintiff knew the defendant had rules which required him to give signals to the engineer, and to see that such signals were observed and obeyed, before going between the cars, and to abstain from going between them while in motion for the purpose of coupling or uncoupling them; that these rules were constantly violated by the switchmen in the presence of the officers of the defendant, and were not obeyed, it having been the custom and practice to couple and uncouple the cars while in motion, on account of the grade in the yard, which would tighten the links and pins, and render it necessary to get the slack by moving the cars; that the plaintiff was in the habit of coupling and uncoupling the cars while in motion, and likewise other switchmen and the yardmaster did the same thing; that on the occasion of the accident the plaintiff gave the engineer a signal to stop, which was obeyed, and he went between the cars to pull the pin, but, being unable to do so, he stepped out, and gave the "slow back up" signal, and again went in between the cars to uncouple them, when the engineer, by a quick movement, bumped the forward cars against the back one; that thereby the plaintiff's foot was caught under the brake-beam, and, holding onto the rung of the ladder, he gave the signal to stop, which not being observed, he was dragged a distance of two or three car lengths until he fell, when several trucks passed over and crushed his leg below the knee, causing the injury complained of; and that, when the last signal was given, the engineer was in the act of replenishing the fire, and therefore did not observe or obey the signal. It further appears from the evidence that the plaintiff's leg was amputated about seven inches above the knee; that he has been unable to wear an artificial leg; and that he has suffered much, physically and mentally. There is also evidence which tends to show that the accident would have been averted...