Edd v. Union Pacific Coal Co.

BARTCH, J., after stating the case as above, delivered the opinion of the court The appellant insists that the court erred in refusing to give his request to charge the jury, as follows: “The negligence of the master need not be the sole efficient cause 1 of the injury, if it contributed with other things to cause the injury to the plaintiff, or if it appears that some cause operated with the negligence of the defendant in producing the injury without fault upon the part of the plaintiff, the defendant would be liable; and this is so whether the other efficient cause was a guilty or innocent one.” The contention of counsel for the appellant as to this request is not sound. Such an instruction was justified neither by the pleadings nor by the proof. The negligence charged as the gist of the action related solely to the pumps. It was alleged that the small pump was out of order, by reason of having a hole through its plunger, and of having its valves coated váth a scale, which caused it to vibrate and jar while in operation, and that the compound pump had deposits from mineral water, which was being pumped, made on its valves — especially on the valve of the discharge pipe, which caused it to leak. Upon these charges, and no others, the plaintiff founded his suit to recover for his injuries, and his evidence tends to sustain the charges. There is no allegation whatever, nor any proof, that other causes than the defects in the machinery referred to contributed to the injury, unless it be that the [297] plaintiff himself, heedlessly, under the circumstances anil existing conditions, placed bis hand into the cylinder. The request, therefore, which was calculated to couple the master’s negligence with other causes, neither alleged nor proven, and which omits the important element that, to hold the master liable where other causes contributed, his negligence must have been the proximate cause of the injury, was properly refused. Whatever combination of causes may be charged as having resulted in an injury, the author of one of them can only be held liable when his act or negligence was the proximate or immediate cause, for if it was remote, and did not directly contribute to the injury, no liability attaches. It is the proximate, and not the remote, cause that the law recognizes. And “when an injury may have come from either one of two causes, either of which may have been the sole proximate cause, it devolves on the plaintiff to prove by a preponderance of the evidence that the cause for which the defendant was liable was culpable and the proximate cause.” 16 Am. and Eng. Enc. Law, 428-431, 445; Searles v. Railway Co., 101 N. Y. 661, 5 N. E. 66; Ohlenkamp v. Railroad Co., 24 Utah 232, 67 Pac. 411. It is also insisted on behalf of the appellant that the court erred in refusing to permit the witness McDonnell to answer the following question: “f^nd if the steam valve 2 leaked upon the steam chest, that would have a tendency to move the plunger ?” This question was properly ruled out, under the pleadings. There was no allegation in the complaint charging the defendant with negligence because of a defective steam valve. The negligence complained of related to the valves connected with the pumps, through which the water leaked and accumulated behind the cylinder, and not to the valve used to control the steam. It was not charged that the steam, leaking through a defective valve, caused the plunger to move, but that it moved in consequence of water leaking through defective valves. The question under consideration called for proof which would cause a var298 ianee between tbe pleadings and the evidence, and was therefore incompetent. The plaintiff could not declare on one theory, and then introduce proof on another. This subject was discussed by this court in Ohlenkamp v. Railroad Co., 24 Utah 232, 239, 67 Pac. 411, and it was there said: “We are also of the opinion that the court erred in admitting, over the objections of the defendant, the evidence relating to the coupling where the train separated, -and to the cars being ‘thrown up — tipped up — off the track.’ There was no issue presented by the pleadings that the coupling appliances were defective, or that the cars were tipped up or thrown from the track. Such evidence constituted a variance from the allegations of the complaint, and was inconsistent with the testimony of the plaintiff’s own witnesses', which showed that the coupling was not defective, and that the cars remained on the track. ‘The law is well settled that a plaintiff can not declare on one theory and recover on another. It is a well-established rule of evidence that the testimony offered must correspond with the allegations of the complaint, and not show an entirely different state of facts.’ ” 22 Enc. Pl. and Prac. 527; Coates v. Railroad Co., 24 Utah 304, 67 Pac. 670; Peay v. Salt Lake City, 11 Utah 331, 338, 40 Pac. 206. We perceive no reversible error in the record. The judgment is affirmed, with costs; BASKIN, C. J., and BOOTH, District Judge, concur.