Hickey v. Rio Grande Western Ry. Co.

STRAUP, J. 1. This is an action for personal injuries. The substance of the complaint is that appellant unnecessarily, negligently, and wantonly permitted steam to escape from one of its engines in its freight yard, where the respondent was engaged in unloading stoves from a box car onto a dray, thereby frightening his team, and in failing to give signals or warning of the approach of the engine. A verdict was had in favor of respondent, and appellant appeals. The material facts, as disclosed by the evidence of re-pondent, show: That there were a number of tracts in appellant’s freight yard at Salt Lake City, where the accident happened, running north and south. Eespondent was there unloading stoves from a box car, standing on what was called the “team track,” onto a dray drawn by a team of horses. The stoves were shipped and belonged to the Western Moline Plow Company, who had engaged the Salt Lake City Transfer Company to convey the goods from the car to its place of business. Eespondent was in the employ of the transfer company. The box ear containing the stoves was placed by appellant on the team track, there to be unloaded, and the goods to be received by the plow company. About forty feet east — 400 — of tbis track was another track running parallel with it. Respondent had backed his team opposite the door of the box car, so that his team was facing east. While there, with others, engaged in loading stoves, appellant propelled an engine upon and along the east track, passing respondent’s team, and stopped to the north of them about ninety or one-hundred feet. As the engine was standing there, the respondent and others noticed a man leaning out of the cab window; whom they took to be the engineer, and also saw a man standing in the gangway looking to the west. The ground was level, no objects intervening. It was broad daylight. Respondent could plainly see the men on the engine, and the engineer as plainly could see respondent’s team and the men working about the dray. While the engine was standing at said place, respondent finished loading, drove his dray up about three feet, and began to tie his load at the back end. To do that, it was necessary for him to drive up that distance. While tying the stoves in the dray, the said engine, which had been standing about five or ten minutes, without giving any signal or warning, was put in motion and run south about as fast as a horse would trot, and, when opposite respondent’s team, steam wás permitted to escape from the engine and against the horses, causing them with a flash to suddenly bolt back, pinning respondent against the box car, and injuring him. The heads of the horses were about eight feet from the engine. Respondent saw the engine standing north of him, and saw what he took to be the engineer in his proper place in the cab; but, as stated by him, he did not know how long the engine would stay where it was, and did not know what they were going to do with it. The manner in which the engine was operated and the circumstances of the transaction are best described in the language of the witnesses themselves: One witness, who was standing in the car door, stated: “'While he [respondent] was engaged in tying the rope from one side of the hind end to the other, I observed an engine going south on the track just east of and adjacent to the tfack on which the box car was standing. At that time I — 401 — saw steam which came from the engine. It made a noise. I didn’t exactly see the steam come from the engine but I could see it come hind of under the engine and raise up in the horses’ faces. When it first came in contact with the horses it struck them about on their knees, I should judge, and then it raised up over their heads. When the steam came in contact with the horses’ legs and heads, they backed very quickly, and it caught Mr. Hickey between the dray and the car. I noticed that the steam came from the bottom of the engine down near the ground. I did not notice that the steam went down, instead of going up. It went more straight out. I couldn’t say just where it came from, for the horses were between where I stood and where it came from, so I couldn’t see. It came from the side of the engine toward the bottom.” Another witness to the transaction stated: “When I first saw it [the engine] on this occasion, they backed in from the south, going north, with three or four cars, and stopped, I should judge, about one hundred feet from the car where we were working. I saw it there, and saw the engineer and fireman, I suppose. They were dressed in overalls and cap. I remember about the time that the dray was loaded. Mr. Hickey was right in behind the dray at the time. The dray had been moved up for the purpose of roping the ranges in, and he was doing that work. I was standing in the car door, and Mr. Hickey was on the ground below me. We had just finished loading up this dray, and Mr. Hickey drove the team up and stepped in between the car and the dray to rope those ranges and stoves on, and all at once this engine came up, and right in front of those horses they shot off steam right from the cylinder. They came back with such a sudden move that Mr. Hickey did not have time to get out, and was crowded right in there. The engine went on a little farther and stopped, and one of the parties, the fireman or the engineer, came back. He lboked at Mr. Hickey, who was then lying on the ground. When the engine shot off the steam it was right in front of the horses, about six or eight feet from their heads. As near as I can — 402 — recollect, the engine was almost directly opposite, and almost in the head of the horses, when the steam escaped. When they shot off steam that way from the cylinder, it sounded like ‘Ski! shi! shi!’ I saw the steam, and it came from the cylinder cocks of this engine. The steam shot up in front of the horses and raised up. It was all under the horses’ feet, and it came up over their heads. I couldn’t say how far it ascended in the air above the ground. It covered the horses’ heads, and was above the heads of the horses. When the steam was discharged, the horses backed with a quick motion, with this man behind the dray.” On cross-examination, this witness stated: “The reason I said it came from the cylinder cocks is because I don’t see how it would get out of the cylinder unless it did. ■ I do not know of any other place that it would come out. I saw the steam come out, and I judged it came from the cylinder cocks, and that is because I don’t know of any other place in the cylinder that it could go out.” On redirect he stated: “When the steam came out from the engine, it went down to the ground and up.” Respondent also put in considerable evidence of expert witnesses, describing the mechanism of a steam engine, the position of the cylinder, cylinder cocks, channel cocks, steam chest, the automatic or relief valve, and the offices and functions of these various parts; that the cylinder cocks are located underneath the cylinder, the latter being about from ten to twelve inches from the ground, and are situate on the right-hand side of the engineer, and are worked by him either by hand or foot, and are under his control; that when an engine stands for some little while there is some condensation of steam, which goes down into the cylinder, but that there should not be any condensation of steam to amount to anything, where an engine had stood from seven to ten minutes ; that the steam chest is on top of the cylinder, and that the automatic or relief valve is on top of the steam chest, and that the purpose of it is that, if there is any leakage of steam, it will escape from the valve, and to let the steam escape while the engine is standing and when it is not under great pres — 403 — sure; that where an engine had been standing on a level track from five to ten minutes, and then moved forward a distance of about ninety feet, it would not be necessary to discharge steam from the cylinder; that under such circumstances there would be no “thumping” or “pounding” of the cylinder on account of condensation of steam, and if there was condensation of steam.in the cylinder the engineer could discharge it while the engine was standing or before it reached a distance of seventy feet, or it could be held without injury until the engine had traveled a distance of one hundred feet —and put in other evidence tending to show that under all the circumstances, it was not necessary to discharge steam at the time and place it was discharged. Appellant introduced testimony from engineers, who, according to the dispatcher’s train sheet, arrived with engines and operated in the yard on the day in question; but all of them denied any such circumstances taking place ab testified to by the plaintiff and his witnesses, or as to the escape of steam and frightening a team, or injuring the plaintiff, or any one. The witnesses for appellant, having disclaimed any knowledge of the transaction, gave, therefore, no evidence as to the necessity of the-escape of steam, or as to any circumstance attending the transaction. Appellant, however, put in expert evidence describing and explaining the construction, and mechanism of a steam engine, the position of the steam chest, cylinder cocks, and relief valves, which did not materially differ from that of respondent’s witnesses. It also gave evidence tending to show that, where there is condensation of steam, it is necessary to open the cylinder cocks, so as to relieve the cylinder and prevent damaging it, and that steam may escape, not only from the relief valve, but from the steam chest joints, and from imperfect or worn packing on the piston rod, and that, under some circumstances, it might be necessary to open the cylinder cocks after an engine had been standing from seven to ten minutes, and then moved from seventy-five to one hundred feet; but some of them stating it was dependent upon whether there were any persons or teams in the vicinity, and depended also upon — 404 — the manner in which' the engine was handled, and what was to be done-with it, and some also stating that, assuming that an engine was ordinarily safe and in good repair and steam was seen coming out from under the engine, they would say it came from the cylinder cocks or the channel cocks, both of which are under the control of the engineer. Appellant introduced no testimony in respect to the engine in question, nor any evidence with respect to the circumstances ,nor the occasion of the escape of steam on the day and at the place in question. It, however, gave evidence as to the likelihood of the condensation of steam under the circumstances, hypothetically put to experts, and that, if there was condensation of steam in the cylinder, it was necessary that it be relieved therefrom, in order to prevent damage to the cylinder and the engine. 2. It is contended by appellant that its motion for non-suit ought to have been sustained, or that its request to direct a verdict for it ought to have been given. This is claimed upon the grounds that there was no evidence showing negligence upon the part of the appellant, for it is urged that the evidence does not show that the steam escaped from such portion of the engine as was under the control of the engineer, r and that, at any event, it is not shown that the escape of the steam was unnecessary and unusal or was done negligently,' and that the evidence affirmatively shows that the plaintiff was guilty of contributory negligence in going behind his dray, and in not observing a proper lookout for the engine, and in not blocking the wheels of his dray. It is claimed by apipellant that, if the steam escaped from the automatic valve, or some appliance over which the engineer had no control, appellant was not liable; that to render it liable it was incumbent on respondent to show that the steam escaped from the cylinder cocks, or some appliance under the control of the engineer; that the evidence shows the steam may have come from the one as well as the other; and that, even though the steam came from the cylinder cocks, the evidence does not show its emission was unnecessary and unusual, or done negligently. Assuming, without deciding, that, if the steam es — 405 — caped from tbe automatic or relief valve,-appellant is not liable, and that respondent must show it was emitted from tbe cylinder cocks or some appliance under tbe control of tbe engineer, we are of tbe opinion that tbe evidence was sufficient to warrant a finding of tbe jury of sucb latter fact. While tbe positive and direct statement of tbe witness Harris, on bis direct examination, that tbe steam did escape from the cylinder cocks, was somewhat weakened on cross-examination and to some extent made to appear that be came to that conclusion because be did not know where else it could come from, yet tbe jury could well arrive at tbe fact that tbe steam came from the cylinder cocks, from tbe description given them of tbe position on tbe engine of tbe automatic valve, the cylinder cocks, and tbe course .the steam took as it escaped from tbe engine, and from the office and functions performed by its various parts as explained to tbe jury by tbe experts and by drawings and illustrations. Tbe evidence shows that tbe automatic valve was on top of tbe steam chest, while tbe cylinder cocks were underneath and at each end of tbe cylinder, which was from ten to twenty inches from the ground. It appears, as testified to by some witnesses, that the steam came from under the engine, and by others that it shot out against the knees of tbe horses, and arose up over their beads; and there was evidence on tbe part of the experts that, if they saw steam come from under an engine which was in ordinary good repair, they would say it came from tbe cylinder cocks or channel cocks, both of which were under tbe control of tbe engineer, as was also shown by the evidence. It was also shown that tbe purpose of tbe automatic valve was to let tbe steam escape while tbe engine is standing still and when it was not under great pressure, although there may, under some circumstances, steam escape from tbe automatic valve while tbe engine is running, depending, however, largely upon tbe manner in which tbe engine is bandied. We therefore conclude, from all tbe evidence and circumstances in tbe case, there was sufficient evidence from which tbe jury could well find tbe fact that tbe steam escaped from tbe cylinder cocks at the time in question. — 406 — We are also of the opinion that the evidence is sufficient to authorize the jury to find the fact that it was unnecessarily permitted to escape, and done under circumstances from which the jury could say it amounted to negligence. The only claim made by which it can be said that any necessity existed for the escape of the steam from the cylinder cocks was that while the engine stood there might have been, and probably was, condensation of steam in the cylinder in such quantity as to require it to be removed, and the cylinder relieved therefrom, in order to avoid damaging the cylinder and engine. But, to the contrary, there is evidence to show, and from which the jury could well find, that such was not the fact, and that ordinarily, under the circumstances as shown by the evidence, considering the length of time that the engine stood, the level ground, the condition of the weather, and the other circumstances shown, there would be no substantial or sufficient condensation of steam requiring it to be removed from the cylinder, and that, if there was such condensation of steam, it well could have been removed before the engine was put in motion, or before the engine arrived at the place where the team stood, or, that the engine, without injury or damage, could have been operated past the horses before discharging the condensed steam. The jury were authorized in finding that the engineer saw the team and the men about the dray engaged in loading; and there being evidence to show that the steam was discharged from the cylinder cocks against the horses when the engine was opposite them, and there being evidence showing that, if there was any occasion to relieve the cylinder from the condensed steam, it could have done before the engine was put in motion, or before it reached the team, or after it passed them, the jury were warranted in finding that the steam was unnecessarily discharged at the particular time, and was not done with that prudence and care that one operating an engine under the circumstances should have used, and was therefore, done negligently. While it is true appellant had the right to operate its engine in the yard at the time and place in question, and to make the usual and nec — 407 — essary noises incident to sueb operation, including tbe usual and necessary escape of steam, and that for tbe making of sucb noises, if made neither unnecessarily nor negligently, appellant would not be liable, although the team took fright thereby and injured respondent. On the other hand, if such noises were made unnecessarily or negligently, and thereby respondent’s team took fright, resulting in his injury, appellant would be liable. It was well stated: “The inquiry in every case, therefore, must be whether the company was exercising its rights in this respect in a lawful and reasonable manner, with a due regard to the rights of others who may be lawfully traveling in the vicinity of the railroad track; for it must be obvious that what may be due care in a thinly settled neighborhood or near an unfrequented road would be sheer negligence in a thickly settled town and on a street along which horses were being momentarily driven. Now, in the present case, we think it appears that the engine, although within the company’s yard, was not managed with a due regard to the rights of the plaintiff, who was lawfully and in the exercise of proper care crossing its track. It does not appear that the engine might not have stopped at a much greater distance from the street, and where the steam might have been blown off without the danger of frightening horses lawfully crossing its track.” (Petersburg R. R. Co. v. Hite, 81 Va. 767.) It should also be conceded that respondent was rightfully in the yard aand engaged in a lawful pursuit, not only with appellant’s bare knowledge and consent, but by its recognition of his right. It owed a duty to him commensurate with those rights, and to so operate and handle its engines and cars as not to needlessly or unnecessarily expose him to injury. The jury were well authorized to find that the presence of respondent and that of his team were known, or ought to — 408 — have been known, to tbe engineer. While tbe team was standing facing east between tbe two tracks, but forty feet apart, tbe engine was operated past them, and stopped to tbe north of them about ninety or one hundred feet, where tbe engine stood five or ten minutes, during all of which time tbe team remained and tbe loading was going on. During part of this time tbe engineer was leaning out of tbe cab window, and, when be put bis engine in motion, tbe jury were justified in finding that tbe team and men working about tbe car and dray were seen and observed by him. Where teamsters, under such circumstances as here, are rightfully in tbe yard of appellant engaged at lawful work, it owes them a duty of all reasonable care and vigilance in tbe movements and operation of its engines and cars to avoid injuring them. (Newson v. N. Y. C. R. Co., 29 N. Y. 385; Chicago, etc., R. Co. v. Goebel, 119 Ill. 515, 10 N. E. 369; Stinson v. N. Y. C. R. Co., 32 N. Y. 333, 88 Am. Dec. 332; Watson v. Wabash, etc., R. R. Co., 66 Iowa 164, 23 N. W. 380.) Here it may be said the team took fright, not only from tbe mere noise of tbe escaping steam, but from tbe fact that tbe steam was discharged against them. Tbe jury may well bave found that, as the team was but eight or ten feet from tbe engine and in plain view of the engineer, be ought to bave known that tbe escaping steam was liable to strike tbe team, and, if so, it would be greatly disturbed, and injury likely to ensue. It was, therefore, a question of fact for the jury to say whether tbe engineer, at tbe time and place in question, was in tbe exercise of ordinary care, and as to whether tbe escaping steam was needlessly or negligently permitted. (23 Am. and Eng. Enc. Law, 744; 2 Shear. & Red. Neg., sec. 426; Weil v. St. L. S. W. R. Co., 64 Ark. 535, 43 S. W. 967; 2 Thomp. Com. on Neg. secs. 1922-1925; Railway Co. v. Harmon, 47 Ill. 298, 95 Am. Dec. 489; Kalbus v. Abbott et al. [Wis.], 46 N. W. 810; Mitchell v. Nashville, etc., R. Co. [Tenn.], 45 S. W. 337, 40 L. R. A. 426; Hahn v. S. P. R. R. Co., 51 Cal. 605; Presby v. Grand Trunk Ry. [N. H.], 22 Atl. 554.) The claim made that respondent was guilty of negligence as matter of law is not tenable. He was where be bad a right — 409 — to bo, and was rightfully engaged at and about his work. His team was gentle, and accustomed to being about the yard and about moving trains, and ordinarily was not disturbed by their ordinary operations. At the time of the accident he was engaged in the performance of a necessary and proper act — ■ that of tying the hind end of the dray. To do so, it was necessary that the dray should be moved a few feet from the box car. The act which caused his injury was, as found by the jury, the needless discharging of steam against his team. Ought he, in the exercise of ordinary care, to have anticipated such an act and guarded against its consequences ? If so, what precaution ought he to have taken? We can but say that he wTas required to use all the reasonable care that a prudent man under like circumstances would have used. Whether respondent came up to that standard or not was a question of fact. It was dependent upon the situation of the premises, the things there done and about to be done, together with all the facts and circumstances surrounding the case. It is said he ought to have blocked the dray wheels; he should not have gone behind the wagon at the time he did; when he drove up his team, he ought to have turned it north, facing the engine. We cannot, as matter of law or abstractly, say the doing or not doing of these and like things is negligence. Nor us here concretely to say the doing or not doing of these things was negligence on the part of respondent, when considered in light of all the circumstances, is ourselves to measure the conduct and actions of respondent by what we think a reasonable prudent man would have done under like conditions, and then to assert that respondent did or did not come up to that standard. It is quite apparent that to do or not to do these things may be negligence in some cases as matters of fact, in others not, and is dependent upon time, place, and circumstances. Here the evidence shows it was reasonably necessary, in loading, to back the wagon against the car, which resulted in the team facing east. When the wagon was loaded, in order to tie the back end, it was necessary that it be driven up. To now say, as matter of law, in a freight yard of numerous tracks, upon which different engines and cars are being operated, re — 410 — spondent should have turned his team facing north and facing the engine, and that anything done short of this was negligence, is most certainly invading the province of the jury; and the trier of the fact might very pertinently assert such an act would not have rendered the team less susceptible to fright or disturbance, or made respondent’s position more safe from appellant’s negligent act. Furthermore, there is evidence to warrant a finding that the team became disturbed and dashed back, not from the mere noise of escaping steam, but from its having been discharged against it. By their verdict the jury has found this was done negligently. To now say that respondent ought to have anticipated this act of negligence, and to have guarded against its consequences by the doing or not doing of these or like things complained of, is to say that one is in duty bound to anticipate the neligence of another. True, respondent knew the engine was standing where it was, ninety or one hundred feet from his team, and that when it started up it was as apt to go south, past him, as to go north, away from him. The consequences of the ordinary and usual operations of the engine he was in duty bound to anticipate, and to use ordinary care to avoid them. But the whole duty to avoid consequences of appellant’s operation of its engine did not rest upon respondent. Each owed to the other a duty, and use of ordinary care. Bespon-dent had the right to expect that úse of care from appellant. In order that he may be freed from the charge of contributory negligence, he was not required to expect or anticipate this,care on the part of appellant would not be observed, and that when the engine was opposite his team, steam would be negligently, as found by the jury, emitted from the engine and discharged against his team, and therefore should have guarded against consequences of such an act. Upon consideration of the whole matter, we are clearly of the opinion that respondent’s acts and conduct, like that of appellant, were here questions of fact for the jury, and their finding thereon is conclusive. 3. It is also contended that the following request of the appellant should have been given: “Therefore the court fur — 411 — ther instructs you that if tbe evidence in tbis case shows that tbe escape of steam may be either from an appliance over which the employees have control or from an automatic appliance which is outside of their control, and the evidence does not show affirmatively that the escape of steam was not from such automatic appliance, then your verdict must be for the defendant.” Without deciding whether the request' accurately states the law (see Presby v. Grand Trunk Ry. [N. H.], 22 Atl. 554; Keech v. Rome, etc., R. R. Co., 59 Hun 617, 13 N. Y. Supp. 149; Railway v. Simon [Tex. Civ. App.], 54 S. W. 309; Duvall v. Ry. Co. [Md.], 21 Atl. 496), it is sufficient for us here to say that the substance of the above request was given by the court. After the court charged the jury that the burden was on the plaintiff to establish by a preponderance of the evidence the allegations of his complaint, naming them, before he was entitled to a verdict, it then stated: “He must further establish by a preponderance of the evidence that the escape of steam from the engine at the time and place and under the circumstances shown by the evidence was the result of some act or omission of ah employee or employees of the defendant company, which such employee or employees could have controlled. Before you are warranted in finding a verdict for the plaintiff in this case, it must appear from the evidence, not only that the steam was permitted to escape from the engine, and that the escape of such steam was a matter under the control of the employees, but it must be shown further that the escape of such steam at the time and place and under the circumstances shown by the evidence was both unusual and unnecessary, or that it was recklessly and wantonly done, or with the intention of frightening plaintiff’s team. You are further instructed that the defendant railway company has the right to operate its railroad and make the usual noises and permit the usual escape of steam from its engine which are incident to the use of such engine. The court further instructs you that negligence upon the part of the defendant company cannot be inferred from the mere fact that this accident happened, nor from the fact that steam escaped or — 412 — was permitted to escape from tbe engine. Tbe plaintiff must further sbow that tbe escape of steam at tbe time and place, and under tbe circumstances shown by tbe evidence in tbe case was not in tbe exercise of ordinary care and prudence.” It will thus be seen that tbe jury were several times told that, in order to find for tbe plaintiff, they must find by a preponderance of tbe evidence that tbe escape of steam was a matter under tbe control of tbe employees operating tbe engine and that such escape of steam was unusual and unnecessary, or was done negligently or intentionally. 4. It is also claimed that tbe court erred in admitting in evidence testimony to tbe effect that, when tbe engine was started and put in motion, and operated towards respondent’s team, no signal or warning was given. Tbe failure to give signals or warnings was alleged in tbe complaint as negligence. Such evidence was, therefore, competent to prove such alleged acts of negligence, and also as bearing upon tbe care of tbe engineer in handling and operating bis engine, and as to whether be was operating it with due regard for tbe rights of respondent, and also as bearing upon tbe contributory negligence of respondent. (Christenson v. Railway 27 Utah 132, 80 Pac. 746.) And for like reasons tbe court did not err when stating to tbe jury tbe substance of tbe complaint, this alleged act of negligence in connection with and among tbe other allegations of negligence. 5. Appellant also complains because tbe court refused to give tbe following request: “Therefore, if you find that the plaintiff, in going behind bis dray without blocking its wheels or taking any other precautions. for bis own safety, or without keeping a lookout for tbe approach of the engine, or arranging for another person to do so, was not in tbe exercise of ordinary care for bis own safety, and that such neglect upon bis part proximately contributed to bis injury, then your verdict should be for tbe defendant.” The court fully and accurately charged tbe jury on tbe question of contributory negligence and tbe care to be used by respondent, and said all that was necessary to be stated to give tbe jury a correct understanding of tbe law on tbe subject. Tbe court — 413 — was not called upon, nor was it proper, to single out one or two isolated facts, and confine tbe jury to those particulars narrated, without notice of others that they might have thought important. In determining whether the respondent was guilty of contributory negligence, “the jury is bound to consider all the evidence and circumstances bearing upon the question, and not- select one particular or prominent fact or circumstance as controlling the case to the exclusion of others.” (Railway Co. v. Ives, 144 U. S. 433, 12 Sup. Ct. 679, 36 L. Ed. 485; Leak v. Railway Co., 9 Utah 246, 33 Pac. 1045; Id., 163 U. S. 280, 16 Sup. Ct. 1020, 41 L. Ed. 160.) Eor the reason that the court fully covered the ground of contributory negligence in its charge to the jury' and for the reason that this request was too much upon the weight of the evidence, it was not error for the court to refuse it. 6. It is also contended that the court erred in refusing to give the italicized portion of the following request: “You are further charged that the mere fact that the accident has happened is not sufficient proof to charge the defendant with negligence. The burden of proving negligence rests on tire party alleging it, and when a person charges negligence on the part •of another as a cause of action he must prove the negligence by a preponderance of the evidence. And in this case, if ihe jury finds that ihe weight of ihe evidence is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover and you should find tl\e issues for the defendant.” Erom the portions of the charge already quoted, we tbinh the substance of this request was given to the jury. It is conceded that the substance thereof was given, except the italicized portion. In addition to the charge already quoted the court said: “The burden of proof is upon the plaintiff in this case, and it is necessary, before he is entitled to a verdict at your hands, that he should establish by a preponderance of the evidence the allegations of his complaint” — stating them. The court further charged: “By a preponderance of the evidence is meant the greater weight of the evidence; that which is the more convincing as to its truth,” etc. It many times has been said, and it has become — 414 — settled law, that it is sufficient if the jury were properly instructed in substance, and that the court need not adopt the form of language presented by counsel; but it may choose that form of language which it deems best adapted to intelligently state the law to the jury on the requested subject-matter. The jury here, having been expressly and affirmatively charged' that the plaintiff, before he was entitled to a verdict, must establish his case, specifically enumerating the propositions, by a preponderance of the evidence, defined to them to be the greater weight of the evidence, we cannot see how the law on this subject would have been strengthened, or the rights of appellant better guarded, by also stating the law negatively to the jury as appellant requested. Where, as here, the court charged the jury that the burden of proof is upon the plaintiff to establish his case by a preponderance of the evidence, it is not required to give a request instructing them that, if the evidence is equally balanced, they should find for the defendant. (International, etc., R. Co. v. Villareal [Tex. Civ. App.], 82 S. W. 1063; Harper v. State, etc., 101 Ind. 109.) We are cited to the case of Wells v. Construction Co., 27 Utah 524, 76 Pac. 560, in support of appellant’s contention. That portion of the request, “that the mere fact that the accident has happened is not sufficient proof to charge the defendant with negligence,” not given in the Wells Case, and the principal point under discussion in that case, was given in the case at bar. In that particular, the casfes are unlike. Further, in the case at bar the court more fully and specifically charged the jury on the questions of burden of proof and preponderance of evidence than was done in the Wells Case; and in this particular the two cases are dissimilar. In •the Weils Case, in effect, it was held that the substance of che request was not contained in the charge. In the case at bar we think the substance of the request is contained in the charge. We are, however, of the opinion that the particular portion of the request (the italicized portion) here not given, and complained of, under the issues as submitted to the jury, does not correctly state the law. Such a statement of law would be correct, where the ease submitted to the jury con — 415 — sists solely of issues upon tbe complaint; for tben tbe burden of proof rests upon tbe plaintiff on all tbe issuable facts. But bere there was an affirmative plea of contributory negligence which was an issuable fact, and, as such, was submitted to tbe jury, upon which, under the unanimous bolding of this court, tbe burden of proof rested upon tbe appellant. Tbe language of this portion of tbe request is open to tbe construction, and therefore objectionable, that plaintiff could recover only by having every point or issue found in bis favor by tbe greater weight of evidence. In other words, if tbe evidence on tbe issue of contributory negligence was “equally balanced,” plaintiff could not recover. We think tbe correct rule is that where tbe ease as submitted to the jury does not consist solely of the issues upon tbe complaint, but also includes tbe affirmative issues raised by the defendant, it is not error for tbe court to refuse like requests. (Richelieu Hotel Co. v. International, etc., Co., 140 Ill. 248, 29 N. E. 1044, 33 Am. St. Rep. 234; 1 Blashfield on instructions, sec. 349.) It is true there is some force to tbe contention that this portion of tbe request relates alone to tbe preceding statement that tbe burden of proving negligence rests upon him who charged it, and, with such construction, it was not objectionable. But by tbe later phrase, “and in this case if tbe jury find,” etc., they were liable to apply it to all tbe issuable facts, including tbe one of contributory negligence, and' therefore it was misleading, and should not have been given. So far as tbe Wells Case is in conflict with tbe views herein expressed, it is overruled. Tbe judgment of tbe court below is therefore affirmed, with costs. AlcCABTY, J., concurs.