Anderson v. Nielson

STRAUP, J. This is an action to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of the defendant Neilson and the defendants the Little Valley Land Company, the Little Valley Irrigation Company, and the Neilson Land & Water Company, corporations. The jury rendered a verdict in her favor against Nielson. He appeals. The death was occasioned in the operation of a ferryboat across Green Eiver in Emery County. The stream at the ferry. coursed in a southerly direction, and at the time of the accident was from 400 to 500 feet wide, two or three feet deep along its banks and seventeen to twentv-ffve feet a.t the middle. Nielson owned the ferryboat; also the ferry. The boat was operated across the stream from east to west. It is not claimed that the defendants, or either of them, were common carriers, or that the boat was operated for the use of the public. It was operated alone for the use and benefit of Nielson and his codefendants, owning ranches and lands on the east side of the river. The boat was about- thirty-seven feet long, thirteen feet wide, and two' feet deep. It was equipped at each end with an apron so attached as to be raised in crossing the stream and lowered for a passageway in getting or driving on or off the boat. The witness spoke of it as having two decks; the upper, and upon which everything was carried, being but seventeen inches above the other. On each side was a railing about three feet high. The one on the north, or upstream, was strongly constructed and securely fastened to the boat. To that railing were the ropes and blocks and tackle attached. The lower railing was not so firmly constructed. Suspended across the stream about — 567 — •fourteen feet above tbe bank or high water was a cable firmly secured on eacb bank. Tbe boat, by block and tackle* one at or near eacb end and on tbe north side of it, was attached to tbe cable, one pulley of eacb block resting on tbe cable, with ropes passing around tbe lower pulley of that block and tbe pulley of tbe lower block and tied to tbe north railing. Drawing tbe forward end of tbe boat near or under tbe cable by means of tbe rope and block, and loosening or letting out tbe rope at tbe backward end and letting that end of tbe boat move down stream a greater distance from tbe cable than tbe forward end, tbe boat was carried by tbe current across tbe stream. On eacb bank were two snubbing posts about ten feet apart, one for high, tbe other low, water. Tbe operation of tbe boat was simple and readily understood. Tbe accident occurred in March, when tbe waters of tbe stream were high, tbe rising of them caused by a thaw and breaking of ice three or four days prior thereto. Tbe current was from four to five miles an hour, moving more rapidly in tbe middle of tbe stream than at tbe shore. Tbe testimony, both on tbe part of tbe plaintiff and tbe defendants, shows that in leaving tbe shore tbe usual and proper manner of operating tbe boat was first to draw tbe forward end of tbe boat, tbe end farthest in tbe stream, to-tbe desired position near or under tbe cable, and then tie or bitch tbe rope with which tbe boat was drawn to such position to tbe north railing. To properly do that it was necessary to loosen or let out tbe rope at tbe backward end or tackle, to allow that end of tbe boat to move tbe desired distance down stream and away from tbe cable as tbe forward end was drawn up-. Then tbe rope at tbe snubbing post was released, and tbe boat by tbe current carried forward. Tbe forward end remained fixed as tied until tbe boat approached tbe opposite shore. In crossing, tbe rope at tbe rear tackle was let out or drawn in according to tbe desired speed, allowing tbe bind end of tbe boat to move a certain distance down stream from tbe cable, increasing tbe speed and drawing it up' toward tbe cable diminishing it. As tbe boat approached tbe opposite — 568 — shore tbe rope at tbe forward tackle was loosened and let out to allow tbe forward end of tbe boat to move downstream and away from tbe cable a sufficient distance to make a square landing. Tbe snubbing rope was then tied to tbe snubbing post, tbe boat beld in position, and tbe apron lowered to get or drive on or off tbe boat. In leaving tbe shore to cross tbe stream it was further shown that to release tbe snubbing rope and to allow tbe boat in high water to move forward before tbe forward end was drawn to tbe required position and tbe rope at tbe forward tackle tied to tbe railing was dangerous, and rendered it difficult, as tbe boat encountered tbe more rapidly moving current, to draw the forward end in position to properly and safely carry tbe boat across tbe stream. Nielson bad in bis employ eight or ten men working on bis ranches. Tbe deceased was in bis employ, and was a sort of foreman in charge of tbe other men when Nielson was not there. In Nielson’s absence tbe deceased directed and controlled tbe management of tbe boat, and, with tbe assistance of other men, operated it. No point is made that be did not understand tbe proper handling and management of tbe boat. When Nielson was present be directed tbe operation and management of it. On tbe morning of tbe day of tbe accident Nielson, who was at tbe ranch on tbe east side of the river, with tbe assistance of tbe deceased and other men, took tbe boat from tbe east shore to tbe west shore of tbe river to there meet 0. They conveyed him and bis horse and buggy to tbe east side. There be inspected tbe soil of one of tbe ranches to ascertain its qualities for fruit raising. Shortly after noon of that day be and bis horse and buggy were conveyed back to tbe west side. Nielson, tbe deceased, and three other men operated the boat. From there O. and Nielson intended to drive to tbe railroad station at Green river; tbe deceased and tbe other men to return to tbe east side with tbe boat. Tbe west side was reached, and tbe boat snubbed to tbe post. 0. drove the horse and buggy off. As Nielson was about to leave, tbe snubbing rope, which bad not been securely fastened to tbe post, released, causing tbe west end of the boat to move downstream and tbe boat to be carried out in — 569 — the stream. There were then on the boat Nielson, the deceased, and three other men. They were nnable to draw the west end of the boat up to the cable to permit the boat to be carried back to the west shore. They, therefore, left it in the position with the east end nearer the cable, and were carried back to the east shore, where they intended to pnt the boat in the required position to be carried back to the west shore, to permit Nielson to land to go with C. On reaching the east-shore the boat was snubbed to the post by two men on the bank, one of them the deceased’s son. Up to this point the evidence is without substantial conflict. But from here there is some conflict in the evidence. As testified to by some of the plaintiff’s witnesses, it was more dangerous to operate the boat in high water than in low water, and that because of the high water Nielson and others, several days before the accident expressed apprehensions of danger in operating the boat until the high waters of the stream had subsided. But the only inference deducible on the record is that the deceased as fully comprehended and realized that danger as did Nielson. The evidence further on behalf of the plaintiff shows that Nielson, in preparing to leave the east shore to return to the west shore, before the-forward end of the boat (the west end) was drawn to the proper position and the rope fastened to the railing, looking in the direction of the men at the snubbing post, called out,. “Boys, let her go,” or, “let it go.” The men on the bank, seeing that the front end of the boat was not in proper position, hesitated. Nielson again said, rather sharply or impatiently, as expressed by some of the witnesses, “Let it go,” or “Boys', let her go.” Thereupon the snubbing rope was released, the deceased and two other men having hold of the-forward rope or tackle endeavoring to draw the forward end to the cable and in position. The boat moved forward. One of the witnesses testified it “shot out;” others, of plaintiff’s witnesses, that it “moved as usual.” The deceased and the men at the forward rope were unable to draw the forward end of the boat to the proper position. Nielson took hold of the rope and assisted. Some of the witnesses on the bank tes570 titled that- as the boat was moving out they saw the slack of the forward rope over the south rail; one of them that Niel-son put it around the rail; another, that it appeared tied to that rail. The men at the rope, with Nielson’s assistance, were unable to draw the forward end of the boat in position. The boat drifted out in the stream about 100 or 125 feet, the current driving the forward end downstream farther from the cable, causing the deceased and the other men holding the rope to be drawn up and against the north railing. As some of the witnesses expressed it, the boat swerved, the front end suddenly cast downstream the length of the rope, and the deceased, who still had hold of the rope, was thrown or pulled overboard and drowned. After the front or west end of the boat had been driven downstream the full length of the rope and there securely held by it and the east end held nearer the cable, the movement of the boat was reversed, which by the force of the current against it was then safely carried back to the east shore. According to the defendants’ evidence, as the boat was about to leave the east shore to return to the opposite side, two men were on the bank at the snubbing post, one man on the boat at the east end, hold of the rope at the backward or east tackle, the deceased and two other men at the west end of the boat, hold of the rope at the forward tackle, and Niel-son near them at the west end of the boat. Nielson, addressing and looking at the man at the east or rear tackle, said to him, “Let that rope go,” or, perhaps, “Let her go,” meaning to let the rope out at that tackle so that the east end of the boat would move downstream to enable the men at the forward tackle to pull the west or forward end of the boat to the required position. The men on the bank, mistaking the order, and taking it as addressed to them, released the snubbing rope, causing the boat to move out before the front end was in position and the rope tied to the railing. Nielson, observing that the deceased and the two men pulling on the rope at the forward tackle were unable to draw the front end of the boat in position, immediately went to their assistance and helped pull on the rope. He testified that he did not put the — 571 — rope around the south railing, and that it was not attached or tied to that rail. The deceased, as the boat started to move out, several times called out to the man at the rear tackle, “Let that rope go,” meaning to loosen or let it out to permit that end of the boat to move downstream and thus enable the men to pull the forward end of the boat up. The rope at the rear tackle was not released, or not sufficiently let out, to enable the men at the forward rope to draw the front end of the boat up; which was gradually by the current driven downstream, and the men at the forward rope gradually drawn up towards the north railing. When the boat had moved out about 100 feet from the shore, and the front end had been driven downstream about the full length of the rope, and the men drawn up against the railing, some of them let loose. The deceased, still holding to the rope, was pulled up and thrown into the stream. The boat then safely returned to the east shore, as heretofore stated. The alleged acts of negligence are: (1) That Nielson negligently ordered the boat released at the snubbing post before the boat was in proper position, and before the rope at the front end had been tied to the railing; (2) that Nielson negligently tied the slack of the rope at the front tackle to the south railing of the boat, causing that side at the front end to be raised and the north • side lowered, the boat to tilt or dip; (3) that Nielson, without notice or warning, untied and released the rope on the south railing, causing the boat to be suddenly jerked and the deceased thrown overboard; (4) that Nielson negligently required and commanded the deceased to stand near the front end of the boat and near the north railing, and there, in a perilous position, to take hold of and pull on the rope. At the conclusion of the plaintiff’s evidence the defendants severally moved for a nonsuit, on the grounds of insufficiency of the evidence to show negligence, and that upon the evidence it was shown that the death was caused by mere accident, or by the deceased’s negligence. The motion was granted as to two defendants, and denied as to two, Nielson and the Little Valley Irrigation Company. Upon the same — 572 — .grounds tbe last-named defendants, at tbe conclusion of all tbe evidence, severally moved tbe court to direct a verdict in tbeir favor. Tbis motion was also denied, and tbe case submitted to tbe jury, wbo rendered a verdict against tbe defendant Nielson alone. He complains of these rulings, of portions of tbe charge, and of tbe refusal to charge as requested by him. He also urges that tbe verdict is in disobedience of tbe charge, and hence is against law. 1,2 I think there is sufficient evidence to support tbe first allegation of negligence, but not tbe second, third, or fourth. As to tbe second and third, there is evidence — the testimony of ■some of tbe witnesses on tbe bank, plaintiff’s witnesses — that tbe slack of tbe forward rope on which tbe men at tbe front end of tbe boat were pulling was over tbe south rail of tbe boat, one of them testifying that after tbe boat bad moved out Nielson put tbe rope “over tbe south rail,” but did not see him pull on it nor take it off. Another testified that Nielson bad bold of tbe rope, that tbe •other three men were pulling on it, and that be “tried to put tbe rope around tbe lower rail,” but that it was not at any time fastened to that rail. Another was asked by plaintiff’s counsel: “Now, what is tbe fact as to whether or not, when tbe boat was out in tbe water, the rope was attached to tbe lower rail ?” Tbe witness answered: “I don’t know whether it was fastened or not. Q. Well, bow did it look to you? Describe its appearance, if you took any particular notice. A. Well, it appeared to me as though it was tied.” But be further testified that be thereafter saw tbe rope “lying on tbe deck (not attached) as tbe front end of tbe boat started downstream,” and saw tbe four men pulling on tbe rope as the current drove tbe front end of tbe boat downstream, drawing tbe men up to tbe north railing, when three of them let go of tbe rope, but could not say whether tbe deceased held on or let go at tbe time be went overboard. It was shown that to attach tbe rope to tbe south rail, with tbe current moving against tbe boat on tbe north side and driving tbe front end downstream, tended to tip or tilt tbe boat. But tbis witness was asked by plaintiff’s counsel: “State whether or not tbe — 573 — boat was tipped in any way.” He answered: “I cannot tell yon that. Q. How did it appear to yon ? Did it appear to be tipped in any way ? Yon said it looked as though it was tied on the south rail. Describe how it was. A. I couldn’t see. Q. Well, I say, it appeared to be tied? In what kind ■of a knot ? A. I couldn’t say whether it was wrapped around the rail or whether it was tied.” Other witnesses on the bank testified that before the deceased went overboard the "boat swerved, as described by them, the front end driven downstream by the current, and by others that the front end ■or north side dipped, causing water to run on the boat either at the front end or over the north side. Now, this is some evidence tending to show that Nielson put the rope around the south rail, and that the boat dipped or tilted. But it ■does not show that he fastened the rope to that rail, or that putting the rope around that rail was the cause of the boat’s dipping or tilting; nor does it show or support the allegation that he, without notice or warning, suddenly released the rope, thereby causing the boat to be jerked or tilted and the deceased thrown overboard. That is, the evidence does not sufficiently, but only vaguely, show that the deceased, from any such cause, was thrown overboard. And a vague or uncertain cause is not a reasonable or probable cause. This is •especially so when, by the testimony of all the witnesses testifying upon the subject, it is shown that just before the deceased went overboard the four men were all pulling on the rope'the end of which then was lying on the deck, and, notwithstanding their combined efforts, the current drove the front end of the boat farther downstream the full length of the rope, drawing the men up against the north rail, and as some of them let loose, the deceased, still clinging to the rope, went overboard. I do not find evidence to justify any other conclusion, and find no sufficient evidence to justify the conclusion that Nielson, by attaching the rope to the south rail and suddenly releasing it, jerked or tilted the boat, and that the deceased, from such a cause, was thrown overboard. Now, as to the fourth allegation. There is no evidence whatever that Nielson, on the occasion in question, at any — 574 — time or in any particular, directed or commanded the deceased, or said anything to him, or that the deceased, because of anything that Nielson said or did, took hold of the rope, or pulled on it, or did anything. He was at the forward rope- and had hold of it, and was pulling on it before the snubbing rope was released, and before the boat moved out, and there he remained, without anything- whatever being said to-, him by Nielson, until he went overboard. 3, 4 I think there is sufficient evidence to support the first allegation of negligence that Nielson directed and ordered the-rope at the snubbing post released before the front end of the boat was in position and the rope at the forward tackle tied to the rail. Of course the defendant’s evidence shows that the order or direction was given to-the man at the rear tackle, to let out that rope. But there is evidence on behalf of the plaintiff to show that the order was-given to the men at the snubbing post to release that rope, which, in obedience to the order, was released, and that it was dangerous and unsafe to do that before the forward end of the boat had been drawn to the proper position and the forward rope tied to the rail. There is, however, the further question — that of proximate cause. It is contended by the defendant that the deceased’s going overboard was not caused by the premature releasing of the snubbing rope; but that the direct cause, the probable, the proximate cause (if his going overboard was not accidental nor due to contributory negligence), was the failure of the man at the rear tackle to release that rope which did not permit that end of the boat to move downstream and prevented the front end from being drawn up. The current moving more rapidly towards the middle of the stream than at the shore, it is urged that had the rope at the rear tackle been released the front end of the boat would have been drawn in position, and the forward rope tied to the rail, before the boat had moved far* and encountered the current where it was moving rapidly. There is evidence to show that the rope at the rear tackle was not released or let out, or at least not sufficiently let out, to permit that end of the boat to move downstream, though the deceased — 575 — twice commanded the man at that rope to let it ont. What testimony there is to dispute it comes from witnesses who but .say they did not notice or see any one at the rear tackle. Still that does not tend to disprove the fact that the rope at the rear tackle was not sufficiently let out to permit that end of the boat to move downstream. It is not alleged or claimed that the defendant was responsible for that. The case is argued and submitted on the theory that he was not. Nevertheless, that the front end of the boat could or would have been drawn in proper position, and the boat safely carried across the stream had the rope at the rear tackle been sufficiently let out, is matter of argument and inference. And though such inference be reasonable and probable, still the deduction was a question more properly falling within the province of the jury. Then there is the further question of sole cause, or concurring causes. If Nielson’s act, prematurely directing the snubbing rope to be released, was a contributing cause of the deceased’s going overboard, then, in the absence of contributory negligence, must he be held responsible, though his act was not the sole, but a concurring and combined, cause with the failure of the man to release the rope at the rear tackle. Of course, it is argued that the failure to release the rope at the rear tackle was an intervening and the sole cause, with which the premature direction to release the snubbing rope did not concur or combine. But again, that is matter of argument and inference. I, therefore, think the question of proximate cause was one of fact. 5, 6 I do not see anything in the evidence to justify a holding that the deceased, as matter of law, was guilty of contributory negligence. The claim is made that, he being familiar with the operation of the boat, realizing the inability of all of the men to draw the front end up, seeing the rope slip through their hands as the front end of the boat was farther and farther driven downstream by the ■current, and, seeing the men releasing their hold as they with him were drawn up against the railing, negligently clung to the rope and was pulled overboard. I think that, too, was — 576 — for the jury. I, therefore, am of the opinion that the plaintiff was entitled to go to the jury on the first allegation of negligence, and hence the court properly overruled the motions for nonsuit and direction of the verdict. But the court erred in submitting the case on the other allegations of negligence. The defendant, however, is not in position to complain of such submission, except as to the issue presented by the last allegation. He cannot complain of the rulings refusing the motions referred to if there was sufficient evidence to support any of the allegations of negligence. As to the last, the fourth, he specifically requested the court not to submit to the jury that issue, on the ground that there was no evidence to support that allegation. The court refused the request and submitted such issue. And, as has been seen, there being no evidence whatever to support that allegation, the ruling clearly was erroneous. As to the second and third allegations of negligence, no such request was made, except as was embraced in the motions for nonsuit and direction of the verdict — to take the whole case from the jury upon all the issues presented by the complaint. Complaint is also made of the court’s refusal to charge on contributory negligence as requested by defendant. The court gave the jury, in substance, every principle embodied in the defendant’s request, and sufficiently and properly charged them on that subject. The defendant requested a submission of the case on the theory that he was not responsible for the premature releasing of the snubbing rope, if the order given by him was directed to the man at the rear tackle but was misunderstood by the men at the snubbing rope, and that rope prematurely released because of such misunderstanding or mistake, as did the plaintiff on the theory that the defendant was responsible if the order given by him was directed and given to the men at the snubbing post. The court submitted the case on both such theories. The defendant, in addition, also requested the court to submit the case on the theory that the failure of the man to release the rope at the rear tackle, and who had been commanded to release it, was the cause of the accident. The — 577 — court refused that request, aud did not submit tbe case upon sucb theory. The court erred in that. The defendant was just as much entitled to go to the jury upon that theory as was the plaintiff upon her theory that the proximate cause of the accident was the premature releasing of the snubbing rope at the direction of the defendant. The charge shows a submission of the case upon all the theories of the plaintiff, some of which are not even supported by evidence, but the want of a submission on theories of the defendant, though supported by evidence. Nor these reasons I think the judgment should be reversed, and the case remanded. In that my Associates concur, but not in the conclusion that there is sufficient evidence of negligence to carry the case to the jury. The judgment of the court below is therefore reversed, and the case remanded for a new trial. Costs to the appellant.