Rio Grande Railway Company v. Leak

This writ of error brings up for review a judgment of the supreme court of the territory of Utah, affirming a judgment of the district court of the Third judicial district in that territory in favor of the defendant in error, based upon the verdict of a jury against the Rio Grande Western Railway Company for the sum of $13,370.

It is averred in the complaint that on or about the 11th day of July, 1891, the plaintiff, Leak, was engaged in his business of hauling ore to cars of the defendant situated on its track, and was traveling with his team of horses and wagon on a wagon road usually traveled, and provided by defendant to be traveled, in the business of the hauling of ores to its cars; that when he had reached the place or crossing where the wagon road crossed the railroad track, the defendant carelessly and negligently caused a train of cars to approach the crossing, and then and there to pass rapidly over its track, and negligently and carelessly omitted its duty while approaching that crossing to give any signals or warning whatever of the approach of its cars, or to stop or to slacken the speed thereof, by reason whereof the plaintiff, without any fault on his part, was unaware of their approach; that in consequence of this negligence and carelessness of defendant the train of cars struck the plaintiff and his horses and wagon and overset the wagon, whereby he was thrown with great force and violence upon the ground, and underneath said wagon and cars, and thereby greatly bruised, crushed, and maimed, in so much that it became necessary to amputate, and the left leg of the plaintiff was amputated, inflicting upon him lasting and permanent bodily injuries, causing him great bodily pain and mental anguish, damaging him in the sum of $20,000, and compelling him to lay out and expend for doctor's medical attendance $105.

The complainant also asserted a claim for the value of his horses nd wagon alleged to have been killed and destroyed by reason of the carelessness and negligence of the defendant company as above alleged.

The answer puts in issue the allegations of the complaint, and, in addition, states: 'If the plaintiff sustained any injuries or damages whatsoever, the same were caused and occasioned solely by reason and because of his own negligence and carelessness in driving into and remaining in a dangerous place, knowing of the danger, and in negligently and carelessly failing to observe the approach of the cars referred to in the complaint, when the means and opportunity of observation were open to him, and in not removing himself from the place of danger after he knew of the existence thereof, and after he had been warned thereof, and not because or by reason of any negligence or carelessness on the part of the defendant, its officers, agents, or servants.'

The court, after stating that the action was not to recover damages in consequence of any other negligence than that described in the complaint, and that the negligence complained of was that the defendant carelessly and negligently caused its cars to approach the crossing, and failed to give any signal or warning whatever of their approach, or to stop or to slacken their speed before the injury, said: 'The defendant, in its answer, denies the allegations of the complaint, and alleges that the plaintiff was also guilty of negligence that contributed to the injury; and it is for the gentlemen of the jury, in the light of all the evidence, after carefully considering it, to determine: First, whether the defendant was guilty of the negligence described in the complaint; second, if you should find that defendant was guilty of negligence described in the complaint, it is then your duty to consider and determine whether the plaintiff himself was guilty of negligence that contributed to the injury. In determining the question of negligence, both on the part of the plaintiff and defendant, you should consider all the circumstances under which the defendant caused the acts to be performed, as alleged in the complaint, and under which its agents or servants failed to act, if you find they did fail in such respect. You have a right to take into consideration the conditions surrounding the injury, the situation of the parties, the location of both the railroad tracks and the wagon road, if you believe there was a wagon road from the evidence, and their location with respect to each other, and the fact that the plaintiff was hauling ore, if you believe that he was. (As to that, I presume, there is no dispute.) You have a right to take into consideration the cars of the defendant, and their situation and location upon the ore track. You have a right to take into consideration the crossing, as to whether the defendant placed the crossing there for the plaintiff and others to travel over and upon the wagon way, if you believe there was a wagon [way] on which persons usually traveled, and that the plaintiff at the time of the injury was traveling upon the wagon way. You have a right to take into consideration the fact that the train of cars, one of which struck plaintiff's wagon (as to that, I presume, there is no dispute)-you have a right to take into consideration the fact that it came down grade without an engine attached to it, and then passed up a slight grade at the time it struck the plaintiff's wagon, if [you] believe from the evidence that it did so pass down and up. It is your duty to take into consideration all of the evidence bearing upon the question of negligence, and, in the light of it all, you must determine whether the defendant was guilty of the negligence charged, or whether the plaintiff was guilty of negligence contributing to the injury.'

The defendant excepted to that portion of the above instruction in which the court said that the jury 'should consider all the circumstances under which the defendant caused the acts to be performed as alleged in the co plaint.'

The court properly instructed the jury in relation to the degree of care required at the hands of the defendant and its servants, as well as to their right to judge of the credibility of the witnesses. It further said: 'It is your duty to weigh the evidence carefully, candidly, and impartially, and in so weighing it you should be careful to draw reasonable inferences; not to pick out any particular fact, and give it undue weight, but you should give it such weight as you think it is entitled to, as reasonable men, looking at it impartially. You should consider the evidence all together. Where there is a conflict in the testimony you should reconcile it, if you can, upon any reasonable hypothesis. If you cannot reconcile their testimony, then you must determine whom you will believe. You are the sole judges of the facts. If you find the issues for the plaintiff, you should consider the extent of the injury as it appears from the evidence, whether it is permanent or temporary. You have a right also to take into consideration the physical pain and mental anguish caused by the injury, and the extent which the plaintiff has been deprived of the capacity to earn a living or to accumulate money or other property. You have a right to take into consideration the injury to his property, the fact that his horse was killed, the injury to the wagon and the harness, if you believe from the evidence that they were injured, and, so considering all the evidence with respect to the injury of the plaintiff and his property as described in the complaint, you should give him such compensation as will remunerate him for the injury sustained. You must look at it in a pecuniary point of view, estimating his loss in money.'

C. W. Bennett, for plaintiff in error.

Orlando W. Powers, for defendant in error.

Mr. Justice HARLAN, after stating the case, delivered the opinion of the court.