Copley v. Union Pacific Railroad

McCARTY, J., after stating the facts, delivered ■the opinion of the court. — 367 — The decisive questions raised by this appeal are: First, was the company negligent in entering in and upon the side track with its engine and coal cars and; propelling them against the block or string of cars to which the hay car was attached while Copley was at work loading it, without first giving him special notice or warning ? And, second, was it negligence on the part of Copley in attempting to pass between the cars on the side track where he was at work, when he knew appellant’s train crew was in the yard with a moving train, and in the vicinity of where he was at work? The rule is well settled by the great weight of authority that, when a railroad company places cars upon a side track for the purpose of being loaded by shippers and consignors of freight, it is the duty of the company t,o exercise ordinary care to protect the 1 parties from injury who are at work, with its knowledge and consent, unloading such cars, and the company has no right to run or hack an engine or train of cars upon the side track, and against the cars that are being loaded, without first giving special notice or warning to the parties, their agents or servants, who are at work loading freight into the cars so placed at their disposal. 2 Thompson on Negligence, sec. 1761; Newson v. N. Y. Cent. R. Co., 29 N. Y. 383; Toledo, St. L. & K. C. R. Co. v. Hauck (Ind. App.), 35 N. E. 573; Ill. Cent. Ry. Co. v. Hoffman, 67 Ill. 287; Chicago & N. W. Ry. Co. v. Goebel, 119 Ill. 515, 10 N. E. 369; Pittsburg, C., C. & St. L. Ry. Co. v. Ives, (Ind. App), 40 N. E. 923; St. Louis, I. & E. R. Co. v. Ridge (Ind. App.), 49 N. E. 828. The record shows that the hay car was placed on the side track by the same train crew who were operating and running the engine and coal cars at the time of the accident which resulted in Copley’s losing his life, and that the conductor and other members of the train crew, when they first entered the depot yard on this occasion, saw parties loading hay into the car from a wagon; and there is evidence which shows that a little later on, as the train moved along — 368 — tile main track and passed by the hay car, and just before it entered upon the side track, the conductor saw and recognized Wright and Copley standing in and near the open door of the car. Hence there is evidence that the company had actual notice of their presence there, and it was clearly its duty, under the circumstances, to give them notice before backing or pushing its cars upon the side track and against the cars to which the hay car was coupled. Appellant contends that the continuous ringing of the bell was notice to the deceased that the engine might at any time enter upon the side track where he was at work, and was a sufficient notice to put him upon 2 his guard. While shippers and receivers of freight their agents and servants, who, with the knowledge and express or implied consent of a railway company, are at work loading or unloading cars standing on a side track in its depot yards for that purpose, are required to exercise ordinary care, and keep their eyes and ears open for all known instruments of danger that may come within range of their senses, yet they may give their undivided attention to their work, and are justified in assuming that the agents of the company will give them due notice and warning of all approaching trains that may come upon the side track where they are at work; and especially is this the rule where, as in this case, the approaching train is hid from their view. The ringing of the bell as the train passed along the main track was no notice to the deceased that it was about to be moved onto the side' track upon which the hay car was standing, and the fact that the conductor and other members of the train crew were in a position to see him (and there is evidence that he was both seen and recognized by the conductor) as they passed, and failed to give him notice that they were about to move the train onto the side track where he was at work, might have been regarded by him as an indication that they had no such intention, which, under the circumstances, would not have been an unwarranted presumption on his park — 369 — The court instructed the jury, in part, as follows: “When a railroad company puts unloaded cars upon the side track for the purpose of being loaded by the owners of the freight, and such owners, their agents 3 or servants, with the express or implied consent of the company, proceed to load the car, the company in such case has no right, without reasonable notice or warning, to run or back a train upon the side track while the cars are being loaded. And while in such case those engaged in the work of loading are not permitted to close their eyes or ears to what comes within the range of their senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them or render their position hazardous without such notice or warning.” Counsel for appellant concedes that this instruction correctly stated the law in the abstract, but insists that it does not obtain when applied to, the facts in this case, and that the giving of it was error. We do not think there is any merit in this contention, as the instruction not only correctly states the law, but is especially applicable to this case.- Appellant puts special stress upon the statements made by Copley to the effect that he did not blame any one -but himself for the accident. The statements are , not sufficient of themselves to release the company 4 from liability, if any, on its part, for the accident, and especially in view of the fact that there is evidence in the record that tends to show he was not in his right mind when he made them. In any event, they could be considered only so far as they might tend to show negligence on the part of the deceased. The great preponderance of the evidence shows that Copley did not know, and had no notice or warning, except the ringing of the - bell, which, under the circumstances, was, at most, an imperfect notice (Ry. Co. v. Hoffman, supra), that the train had been moved onto the side track — 370 — upon which, the hay car was standing at the time he started to pass between the cars. Albert Wright, the only eyewitness, signed a written statement, which was prepared by the company, of what occurred, which statement is in evidence, and, in part, is as follows: “We went over to the west side, to be there when the team came back to put in the.balance of the hay. I didn’t know that the engine was working on the same track the car of hay was on there. I don’t suppose that Mr. Copley knew that, either. When we started across we could not see the engine — could not see which track it was on — because we did not step east far enough to see. ’ ’ Appellant further insists that as deceased could, with perfect safety, have gone around the two cars which stood immediately south of the hay car, it was 5 negligence per se for him to pass between the cars, and that, as a proposition of law, the respondents can not recover, and in support of this contention cites and relies upon the case of Fritz v. Electric Light Co., 18 Utah 493, 56 Pac. 90. There is a marked distinction between that case and the one under consideration. The facts in the two cases are not at all similar. In the Fritz case the work consisted of oiling and taking cafe of live dynamos — machinery in the process of generating electricity — and the employment was inherently dangerous, and was known by Fritz to be so, and his safety did not in any way depend upon the degree of care and caution exercised by his fellow servants or agents of the company. Had Fritz been engaged in working at and around the machinery at a time when it was not charged with electricity, with the express or implied understanding with the company that it was t® remain in that condition until he completed his work, and the company had, without previous notice or warning to him, turned on the current, with fatal results to Fritz, the facts would not have been dissimilar in some respects to those of the case under consideration, and the result in that case might have been different. In — 371 — ■the case before us the deceased was not in the employ, of the appellant, nor a fellow servant of its train crew, and the work at which he was engaged was not inherently dangerous.- So long as the car'around which the deceased was working was not molested by appellant or its agents, there was no danger connected with the work. Had Copley known or had notice before he attempted to pass between the cars that the engine and coal cars were moving on the side track referred to, or had the cars at the time he started to pass between them been in motion, the facts in the ease, in some respects, would be similár to those in the case of Fritz v. Elect. Light Co., supra. As the facts and conditions under which Fritz lost his life were entirely different from those which caused Copley’s death, the same rule of law does not necessarily govern in both cases. We are of the opinion, and so hold, that, under all the facts and circumstances of this case, the questions of negligence bn the part of the appellant, and contributory negligence on the part of Copley, the deceased, 6 were questions for the jury to determine. The jury having found adversely to appellant on these issues, this court, under section 9, article 8, Constitution, is powerless to interfere* with the yerdict, even though we might differ with the jury as to the weight of the evidence. We find no reversible error in the record. The judgment is affirmed. Costs of this appeal to be taxed against the appellant. BASKIN, C. J., concurs.