Wood v. Rio Grande Western Railway Co. , 28 Utah 351 ( 1904 )

BASKIN, C. J.

This is an action in which tbe plaintiff seeks to recover damages for injuries alleged to have been caused by tbe defendant’s negligence in failing to furnish tbe plaintiff, while performing bis duties as a servant of tbe defendant, reasonably safe cars and efficient brakes with which to perform bis work, and to inspect tbe same and see that they were in a reasonably safe condition. Tbe answer denied -the alleged negligence, and pleaded assumed risk and contributory negligence by tbe plaintiff. From tbe judgment rendered in favor of plaintiff, tbe defendant appeals.

It appears from tbe evidence that tbe car alleged to have been defective belonged to tbe Canadian Pacific Railroad Company, but was in use by tbe defendant, and was numbered C. P. 90,727. Tbe plaintiff was injured on June 9,1902. O. F. Harris, one of defendant’s witnesses, on his examination in chief, testified as follows: “I was on duty on the 8th day of June, 1902, and inspecting cars at that time. I do not’ remember particularly inspecting car C. P. 90,727. I was inspecting a number of cars on that day. I keep a record of all the cars that I inspected. The book that you hand me is a copy of that record, and is in my handwriting. When we find any defect in a car, we note the defect opposite the car number. When we find a car in perfect condition, we do not make any entry whatever. That would indicate a clear record for the car, and that there was no defect in it. If there is any defect in the car, it is noted, providing it is not shopable. I mean by that, if it is not in good condition to run, it is required to go to the shop ,• then I would say ‘Shop;’ and, if I find any defect, I note that. Turning to my record of June 8,1902,1 find this car No. 90727, and I can tell from this record that I inspected that car. I did not find anything in relation to it; no defects whatever. The record is right there [indicating the book]. That indicates a clear record. ’ ’ This testimony having been given without any objection, and the witness’ attention having been directed to a similar record respecting said car, made by L. R. Rogers, an inspector of the Canadian’ Pacific Company, of the date of June 12, 1902, three days after the plaintiff was injured, he further testified that: ‘ ‘ The record that you hand me now is the record of L. R. Rogers, who was inspector for the C. P. Mr. Rogers, I think, now is in Los Angeles, California. I do not know whether or not he is in Ogden. I know his handwriting, and the entries in the book you have handed me are in Mr. Rogers ’ handwriting. ’ ’ Whereupon the attorney for the defendant offered the entry relating to said car in evidence. Plaintiff’s attorney objected to the introduction of this entry on the grounds, among others, that it was incompetent and not the best evidence. The objection was sustained. The action of the trial court in sustaining the objection was excepted to by defendant, and is assigned as error. Counsel for appellant contend that upon tbe foregoing showing the rejected entry was admissible, both as-original evidence and as part of the res gestae. As 1 the rejected entry was not made by either an officer or agent of the defendant company, and was not made until the third day after the accident, it was not competent as original evidence, nor as part of the res gestae. It was therefore properly rejected.

Instruction No. 8 given by the court is as follows r ‘ ‘ The master must use reasonable care to provide a servant with reasonably safe appliances with which to perform his work, and he must use reasonable care and diligence to keep the same in a reasonably safe condition.” And No. 10, given, is as follows: “The court instructs the jury that if they believe that the plaintiff was injured, as alleged in the complaint, while in the performance of his duty in switching cars, then the jury are instructed that the delivery of such car to plaintiff for use raises for his benefit the implication that the defendant had used suitable care and foresight in adopting it as an instrument or means to carry on its business, and that plaintiff could not rely upon the body of the car and its running gear being safe, but he could also presume that the brake on said car was in a reasonably safe condition.” Afterwards No-. 23, at the request of the appellant, was also given, as follows: “The duty which the defendant owed to its employees with reference to the car in question, if you find that it belonged to another company and was received for transportation over the defendant’s lines, as hereinbe-fore stated, was not that of furnishing reasonably safe appliances for their use in the discharge of their duties, but was that of inspection, merely; and, if you find that this duty of inspection was performed with reasonable care, then the defendant is not liable, even though the appliances were in fact in a defective condition. ’ ’ The first two instructions were excepted to-, and the specific exception presented in appellant’s brief is that the eighth and tenth instructions are in conflict with the twenty-third instruction. It is settled by numerous decisions of this court that the contract of employment 2 imposes upon the master the duty of exercising reasonable and ordinary care in providing and maintaining reasonably safe machinery and appliances for the employees to work with; that this duty is a personal duty of the master, which can not be delegated so as to release him from responsibility; and that a failure to perform this duty is the negligence of the master, for which he is liable. Pool v. Southern Pacific Co., 20 Utah 210, 58 Pac. 326; Hill v. Southern Pac. Co., 23 Utah, 94-102, 63 Pac. 814; Daniels v. Railway Co., 6 Utah, 357, 23 Pac. 762, affirmed in Union Pac. Ry. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597; Allen v. Railway Co., 7 Utah, 239, 26 Pac. 297; Chapman v. Railway Co., 12 Utah, 30, 41 Pac. 551; Fritz v. Electric Light Co., 18 Utah 493, 56 Pac. 90. This duty applies as well to machinery 3 and appliances which are not owned by the master, but are received and used in his business, as to machinery and appliances owned by him, and his duties in respect to both are the same. Texas Pac. Ry. Co. v. Archibald, 170 U. S. 665; 18 Sup. Ct. 777, 42 L. Ed. 1188. In the opinion in the last-mentioned case, delivered by Mr. Justice White, it is said. “That it was the duty of the railway company to use reasonable care to see that the cars on its road were in good order and fit for the purposes for which they were intended, and that its employees had a right to rely upon this being the case, is too well settled to require anything but mere statement. That this duty o.f a railroad, as regards the cars owned by it, exists also as to cars of other railroads received by it, sometimes designated as foreign cars, is also settled. Baltimore & Potomac Railroad Co. v. Mackey, 157 U. S. 72, 91, 15 Sup. Ct. 491, 39 L. Ed. 624.” The same doctrine is held in the following cases: C., B. & Q. Ry. v. Avery, 109 Ill. 314; Budge v. Morgan’s L. & T. R. & S. S. Co. (La.), 32 South. 535, 58 L. R. A. 333; Youngblood v. Railroad Co., 60 S. C. 9, 19, 38 S. E. 232; 85 Am. St. Rep. 824; Mateer v. Missouri Pac. Ry. Co. (Mo. Sup.), 15 S. W. 970; Bender v. Ry. Co., 137 Mo. 240, 37 S. W. 132; Gottlieb v. N. Y., L. E. & W. Ry. Co., 100 N. Y. 462, 3 N. E. 344; Sack v. Dolese, 35 Ill. App. 636; St. L. & S. E. Ry. Co. v. Valirius, 56 Ind. 512; Union Stockyards v. Goodwin, 57 Neb. 138, 77 N. W. 357. In the ease of Youngblood v. Railroad Co., supra, tbe trial court refused to charge, as requested by tbe defendant, that: “If tbe jury find from tbe evidence, if there be such evidence, that tbe cars between which plaintiff is alleged to have been injured were foreign cars (i. e., cars of another company than defendant company), then it is only required of defendant to make an ordinary and reasonable inspection of such cars for any defects which may be discernible by an ordinary examination.” In the appellate court it was contended on behalf of the defendant in that case “that said request should have been charged unqualifiedly, as it contained a correct statement of the law applicable to the case, and properly drew the distinction between the duty of the defendant with reference to foreign cars and cars of its own, showing that, as to foreign cars, the duty of the railroad company was not that of furnishing proper machinery for service, and keeping the same in repair, but it is one of inspection only, and was performed when the defendant had made a reasonable inspection of such foreign cars for any defects which might be discernible by an ordinary examination; that the charge of the presiding judge with reference to said request was erroneous, in that it ignored the distinction sought to be made, and drew a comparison only as to the inspection of the respective cars, leaving the general proposition of law as to master and servant, as stated in his charge, to apply alike to foreign cars as well as cars of its own. ’ ’ The appellate court, in passing upon defendant’s contention, said: “In the first place, there was no testimony from which the jury had the right to infer that they were foreign cars; and, in the second place, the proposition embodied in the request was not sound.” That it was the duty of the defendant in this case, as held in the case in 170 U. S. 699, 18 Sup. Ct. 777, 42 L. Ed. 1188, before cited, to “use reasonable care to see that the cars employed on its road were in good order and fit for the purposes for which they were intended, and that its employees had a right to rely upon this being the case, is too well settled to require anything but mere statement. ” We are clearly' of the opinion that the eighth and tenth instructions were warranted by the evidence, and correctly stated the law applicable to the case.

In respect to the twenty-third instruction, there was no evidence upon which to base a finding by the 4 jury that the defendant’s duty of inspection was performed with reasonable care before the plaintiff was injured. C. F. Harris, defendant’s inspector, was the only witness who testified that any previous inspection had been made. He testified in chief: “I was on duty on the 8th day of June, 1902, and inspecting cars at that time. I do not remember particularly inspecting car C. P. 90727. I was inspecting a number of ears on that day. I keep a record of all cars that I inspected.” The character of the record has already been shown herein. On cross-examination he testified: “I have no particular recollection of that car, outside of my record, nor of the number, so that, in testifying, I am relying entirely upon the record that I made then. It was not until yesterday that my attention was called to the fact that -there was some trouble about this car.” It is not claimed that any inspection, except that referred to by this witness, was made before the accident. What was done by him in making the inspection was not disclosed, and it appears from his statements that he himself did not know, and that only from his reliance upon the record made by him was he enabled to state that he had ever inspected the car at all. While there was a radical conflict in the evidence respecting the condition of the car at the time the plaintiff was injured, there was ample evidence to justify the jury in finding that the car was not reasonably safe, and that, by the exercise of reasonable and ordinary care on the part of the defendant, its dangerous condition could have been discovered. We are clearly of the opinion that the trial court erred in giving the twenty-third instruction, because it was inconsistent with the other two correctly given, was not warranted by the evidence, and misstated the law applicable to the case. This brings us to the consideration of the question as to. whether or not reversible error was committed thereby. On behalf of the appellant it is contended that, “where conflicting charges are given, it is to be presumed that the jury may have followed that which is erroneous, and the case should for that reason be reversed. ” It is reversible error to give conflicting instructions only where either of them is prejudicial to the party who properly takes exceptions thereto; but not so when, as in the case at bar, correct instructions are first given, and afterwards another is given at the request of the party excepting, which is favorable to him, but which 5 is erroneous and in conflict with the previous ones. The giving of the erroneous instruction at the request of the appellant was not reversible error.

The plaintiff having, in open court, on the day next preceding the trial of the case, made the payment 6 and demand'd: or a new list of jurors authorized by section 1, chapter 132, page 154, Session Laws 1901, the judge, in pursuance of said section, ordered the sheriff to draw from the jury box the names of thirty jurors. The jury impaneled in the case was composed of persons drawn from the jury box and summoned to appear by the sheriff. The defendant objected to the trial of the case by a jury on the ground that both the plaintiff and defendant had waived a trial by jury, by not having demanded the same as provided by section 3129, Revised Statutes 1898. No demand was made by either of the parties in accordance with section 3129. It is contended that, by tbe failure to demand a jury in accordance with said section, a trial by jury was waived by both parties, and that, thereafter the court’s jurisdiction was limited to a trial without a jury, and that therefore the trial had was unauthorized and void. In the case of Whipple v. Preece, et al., 24 Utah, 364-376, 67 Pac. 1072, both sides expressly waived a jury, but the court declined to hear" the case without one, and thereupon the plaintiff interposed a challenge. This court, in the opinion delivered by Mr. Justice BARTC'H, said: “It is not claimed that any jurors were unfair or biased. . . . The verdict appears to be the legitimate result of the evidence. The testimony is not such as to indicate that, if the judgment were reversed, the plaintiff could or ought ultimately to recover. Under all the facts and circumstances of this case, viewed in the light of the provisions of the statute quoted and referred to, we are of the opinion that a reversal because of the irregularity complained of would not be justified. Railroad Co. v. Frazier, 25 Neb. 42, 40 N. W. 604; Prince v. State, 3 Stew. & P. 253.” We are of the opinion that the court below possessed discretionary authority to direct a trial by jury notwithstanding the parties to the suit may have waived the same.

The other assignments of error being less plausible than those already passed upon, the record fails to disclose any reversible error.

The judgment is affirmed, with costs.

BARTCH and McCARTY, JJ., concur.