Webb v. Denver & Rio Grande Western Railway Co.

AudeRSON, J.: This action is brought to recover damages for the death of plaintiff's decedent, Louis T. Webb, alleged to have been caused by the negligence of the defendant. The case was before this court on a former appeal (Webb v. Railway Go. ante. 24 Pac. Rep. 616), and was reversed, and another trial was had in the district court, and plaintiff recovered a verdict and judgment in the same amount as at the first trial. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling the motion. At the trial, by stipulation between counsel, the evidence embodied in the record upon the first appeal was read to the jury. The court gave the same instructions to the jury that were given upon the first trial, except as to the measure of damages, and the same requests, made and refused at the first trial, were made and refused at the second. Plaintiff's decedent was a car-inspector and repairer in the yards of the defendant at Salt Lake City. An eastbound train, at the station, in switching, pulled out the draw-head of a refrigerator-car, and the- train separated. The forward part was backed up, and broke the brake366 beam of the oar ahead; the forward part of the train was moved forward, and the conductor called Rice, the car-inspector and repairer in charge of the shop and yards at the station, to remove the broken brake-beam so that the cars could be coupled with a chain, and the broken car set out of the train for repairs. He came with the deceased as an assistant, and they removed the broken brake-beam. The conductor got a chain from the engine, and put it on the refrigerator-car, and then signaled the engineer to back for coupling, and he backed so that the cars came within about eighteen inches of each other, and stopped, and Rice and the deceased were standing by. A brakeman went in to make the coupling with the chain, but was unable to do so, and the deceased stepped in the side opposite the brakeman to assist in making the coupling with the chain, and, while both were down on their knees, the forward cars were permitted to come back, and crushed the head of deceased, killing him instantly. It is insisted by counsel for the defendant that the engineer and the deceased were fellow-servants, and that, therefore, it is not liable for the negligence of the engineer in negligently moving the engine backward, whereby deceased was killed. The instructions given the jury by the court on this point, and which are claimed to be erroneous, are as follows, to-wit: (1) “The court charges you that if you find from the evidence that the death of Louis T. Webb was caused without fault or negligence on his part, while he was betwéen the cars assisting the brakeman to couple the same, on account of the negligence of those in charge of said train in moving or backing said train, without notice or warning to said deceased, you will find in favor of the plaintiff; unless you also find that such backing of the train was due solely to the negligence of the fellow-servant of said deceased engaged in the same depart [367] ment of service.” (4) “ The court further charges you that servants of the same master, to be co-employés or fellow-servants, so as to exempt the master on account of injuries sustained by or resulting from the negligence ■of the other, must be such as are directly co-operating with each other in a particular line of employment, or such that their usual duties shall bring them into habitual association, so that in the use of reasonable diligence they may exercise a mutual influence upon each other promotive of proper precaution.” (5) “ If the jury find that the death of Louis T. Webb was caused, without fault or negligence on his part, by the negligence of the engine-driver or other person in charge of said freight train, and that such engineer or other person was at the time engaged in a separate and distinct department of service from that in which said deceased was engaged, then you will find a verdict for the plaintiff.” We think the instructions state the law correctly, and are in conformity with the rule laid down, by this codrt in Daniels v. Railway Co., 6 Utah, 357, 23 Pac. Rep. 762. See, also, Railway Co. v. Ross., 112 U. S. 377, 5 Sup. Ct. Rep. 184; Railway Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590. In the last case cited, Justice Rield says (page 653, 116 U. S., and page 596, 6 Sup. Ot. Rep.): “The words, 'same general business/ have reference to the general business of the department of service in which the employé is engaged, and do not embrace business of every kind which may hav^ some relation to the affairs of the employer, or even be necessary for their successful management. If any other construction were adopted, there would be no such thing as a separate department of service in the business of railroad companies; for whatever would tend to aid in the transportation of persons and property would come [368] under the designation of its general business.” We have examined all the instructions given and refused in connection with the evidence, and find no error. It is contended that the damages are excessive. The deceased was twenty-eight years old when he was killed. He was in robust health, was industrious, and of good habits, and was receiving $1.75 per day from the defendant. We cannot say that, under these circumstances, $4,995 is so excessive as to justify a reversal on that ground. The judgment of the district court is affirmed. Miner, J., and BlackbuRN, J.,. concurred.