Boyle v. Union Pac. R. Co train. Counsel for the appellant has devoted much time and space in his brief to the discussion of this phase of the case. The motion for a nonsuit is not based on this ground. By referring to the motion, which is set out in full in the statement of facts, it will be seen that contributory negligence is not made a basis for a nonsuit. This court has repeatedly held that a party moving for a nonsuit is required to state in his motion the specific grounds relied on. Therefore we cannot consider these alleged elements of contributory negligence, as they are raised for the first time in this court. Frank v. Min. Co., 19 Utah, 35, 56 Pac. 419; McIntyre v. Ajax Min. Co., 20 Utah, 323, 60 Pac. 552; Lewis v. Min. Co., 22 Utah, 51, 61 Pac. 860; Wild v. Union Pacific Ry. Co., 23 Utah 265, 63 Pac. 886; Palmer v. Marysville Dem. Pub. Co., 90 Cal. 168, 27 Pac. 21. It may be contended that, notwithstanding the motion for a nonsuit does not directly charge contributory negligence, it is inferred from the phraseology, as the last paragraph of the motion contains the following allegation: "That the extraordinary use made by plaintiff of this brake was uncalled for and unexpected, and one that the brake was not calculated to sustain." The trial court undoubtedly held this to be a sufficient allegation to raise the question of contributory negligence on the part of the plaintiff in using the brake as a substitute for a ladder to enable him to climb onto the car, as the order overruling the motion contains the following paragraph: "The motion for a nonsuit in this case appears to be based upon two principal grounds. The one is that plaintiff in doing what he did assumed the risk. The other ground is that plaintiff was guilty of contributory negligence." The trial court having treated the foregoing paragraph as an allegation of contributory negligence on the part of plaintiff in stepping on the brake referred to, we will, for the purposes of this case, adopt the same view. The rule has become elementary that it is a duty the master owes to his servant to use reasonable care and prudence for his safety by providing the machinery in use with such appliances as will enable the servant with ordinary and reasonable care on his part to perform the duties required of him without danger except as may be reasonably incident to the business or employment engaged in. That is, the master is required to provide the same kind of appliances, or appliances equally as safe, as those in general use by men of ordinary prudence who are engaged in the same kind of business. Bailey's Mast. Liab. pp. 15, 16, and cases cited; Sherman & Redfield, Neg. § 194; Pool v. So. Pac. Co., 20 Utah, 210, 58 Pac. 326. It is not only the master's duty to provide his servants with reasonably safe appliances, but it is also his duty to use ordinary care in looking after, inspecting, and keeping them in repair. Sherman & Redf. Neg. § 195; Bailey's Mast. Liab. p. 101. Testing the facts in this case by the foregoing Boyle v. Union Pac. R. Co rules, we do not think that such a case of contributory negligence was made out as would justify a court in taking the case from the jury and granting a nonsuit. When the defendant company transferred the car referred to from the passenger service to that of the freight, it was its duty to provide it with the necessary appliances that are ordinarily used on and attached to cars used in the freight department, and to use ordinary care in inspecting such appliances and keeping them in repair, so as to enable plaintiff and other employees of the company, whose duties required them to pass from one car to another while the train was in motion, to do so without incurring unnecessary risks, or exposing themselves to unnecessary dangers. The defendant having failed to provide such appliances, it cannot, therefore, be held as a legal proposition that because plaintiff, while in the performance of his duties, attempted to pass over this car, and in so doing stepped on the brake the only means at his command to assist him-he was guilty of contributory negligence. In view of all the circumstances leading up to the injury of plaintiff, as shown by the record, the question as to whether he used that degree of care and caution that a man of ordinary prudence, understanding the hazard and dangers of the situation, would have used under the same or similar circumstances, was a question for the determination of the jury, in connection with the question of the alleged defect in the brake; and, if it was of such a character, that the company knew, or by the exercise of reasonable care would have known, of its existence. It is urged that, independent of the question of the alleged contributory negligence of plaintiff in using the brake to climb onto the car, he is precluded from recovering in this case because in making the run from Emery to Castle Rock on the day of the accident he not only violated the schedule, but also the printed rules, of the company. The rule is well settled that when the master has a large number of persons employed, and the safety of the employment mainly depends upon all of the employees performing their duties at stated times and in a given manner, it is the duty of the master to promulgate and furnish such employees with suitable rules. and regulations for their guidance and safety. Pool v. So. Pac. Co., supra, and cases cited; Bailey's Mast. Liab. p. 72. And the law holds the servant to a rigid observance of such rules, and especially so where the employment consists of operating and running numerous railroad trains, and the safety of the traveling public is also involved. There are, however, exceptions to this rule. When the master has habitually, either expressly or tacitly, sanctioned the violation of the rules, or for any reason suspended them, he cannot interpose such violation to defeat a recovery. Wright v. So. Pac. Co., 14 Utah, 383, 46 Pac. 374; Konold v. R. G. W. Ry., 21 Utah, 381, 60 Pac. 1021, 17 Am. & Eng. R. Cas., N. S., 450, 81 Am. St. Larabee v. New York, etc., R. Co Rep. 693; Fluhrer v. Ry. Co. (Mich.) 80 N. W. 23, 17 Am. & Eng. R. Cas., N. S., 463; Nichols v. Chicago Ry. Co. (Mich.) 84 N. W. 470. The undisputed evidence in this case shows that when trains were run in pursuance of time orders that paragraph No. 90 of the printed rules of the company-and the one mainly relied upon by defendant to defeat a recovery -was not observed, and that this condition of affairs had always existed. And the record also shows that when a time order was issued to a conductor, and he had sufficient time to reach the stations covered by the order, it was his duty to do so regardless of the regular schedule. The plaintiff on a former occasion made the run from Echo to Castle Rock in 25 minutes. On the day in question, under the time order issued to him, he had 26 minutes in which to make the same run. The defendant, having by its own orders in effect authorized the plaintiff to ignore its rules, cannot now be heard to complain of such violation. Appellant assigns as error the giving of certain instructions to the jury by the court, and the court's refusal to give certain instructions asked for by defendant. We cannot consider these alleged errors, as the record fails to show that any exceptions were taken to them. We find no reversible error in the record. The judgment is affirmed. Costs to be taxed against the appellant. BASKIN, C. J., concurs. BARTCH, J., dissents. LARABEE v. NEW YORK, N. H. & H. R. Co. (Supreme Judicial Court of Massachusetts, Hampden, Dec. 2,.1902.) [66 N. E. Rep. 1032.] Tender. * ** Servant-Injuries-Railroad Cars-Automatic Couplers-Locomotive St. 1895, p. 412, c. 362, § 2 (R. L. c. 111, § 203), provides: "No railroad corporation shall haul or permit to be hauled or used on its lines any car which is not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." Act March 2, 1893, c. 196, §8, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3176], provides that "any employee of such corporation who may be injured by any locomotive. car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk," etc.: held, that the tender of a locomotive is not a car within the statute. Exceptions from Superior Court, Hampden County; Maynard, Judge. Action by George Larabee against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff, and defendant brings exceptions. Exception sustained. Argued before HOLMES, C. J., and KNOWLTON, MOR Larabee v. New York, etc., R. Co TON, LATHROP, BARKER, HAMMOND, and LORING, J. B. Carroll and W. H. McClintock, for plaintiff. HOLMES, C. J. This is an action for personal injuries caused by the catching of the plaintiff's hand between a car and the tender of an engine when he was trying to couple the two. The plaintiff had a verdict, and his case is here on the defendant's exceptions. The car was equipped with an automatic coupler, as required by St. 1895, p. 412, c. 362, § 2 (R. L. c. 11, § 203), but the tender was not, so that the coupling had to be done in the old way with a link and pin. The plaintiff's case was that the tender should have been equipped in the same manner as the car. * * * The section cited copies, for traffic within the state, the provisions of United States statutes, Act March 2, 1893, c. 196, § 2, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], as to interstate commerce. The material words are "No railroad corporation shall haul or permit to be hauled or used on its lines any car which is not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." By a later section it is enacted that "any employee of such corporation who may be injured by any locomotive, car or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such corporation after the unlawful use of such locomotive, car or train has been brought to his knowledge." Act March 2, 1893, c. 196, § 8, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3176]. The defendant asked a ruling that a tender of a locomotive is not a car within the meaning of the act. The refusal of this raises the only question with which it is necessary to deal. The court is of opinion that the ruling requested should have been given. It may be, as some of us think, that the rear end of the tender is within the policy and object of the act, but the word "car" in its ordinary use and acceptance does not include it. On the contrary it excludes the tender as obviously as it does the engine. It always is dangerous to give unusual meanings to the words of a document on the strength of an imagination of what the writer had in mind. Moreover, the other language of the section indicates that, whatever the evil which the Legislature sought to prevent, it had in mind only cars properly so called. The prohibition "no railroad corporation shall haul" hardly would be so expressed if it had in conscious view not merely the cars which are regarded as the inert objects of traction by a separate engine from which they are detached daily, but also the tenders which are so much more closely associated with the Phillips v. Central R. Co. of New Jersey source of power as almost to be regarded as one with it, and which only exceptionally and with more or less difficulty are taken apart from it. It is said that the word has been interpreted in the same way by the United States Circuit Court. 15 Interst. Comm. R. 67. Exceptions sustained. PHILLIPS v. CENTRAL R. Co. OF NEW JERSEY. (Supreme Court of New Jersey, Nov. 10, 1902.) [53 Atl. Rep. 221.] Injuries to Servants-Place of Duty-Contributory Negligence. In an action by a brakeman against a railroad for injuries, the evidence showed that plaintiff was injured by being rolled between a car of the train on which he belonged and a car on an adjoining track. Plaintiff testified that he was on the side of the car for the purpose of cutting out some of the cars from the train, but the testimony of all the other trainmen was to the effect that no cars were to be taken out at that point: held, that plaintiff was injured at a place where his duties did not call him, and through his own negligence. Action by Edward D. Phillips against the Central Railroad Company of New Jersey. On defendant's rule to show cause why new trial should not be granted. Rule made absolute. Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ. William C. Gebhardt, for plaintiff. GARRETSON, J. The plaintiff was a brakeman in the employ of the defendant company, and was injured in the yard at Hampton Junction by being squeezed and rolled between a car of a moving mixed coal and freight train and a freight car on an adjoining track. His place of duty was upon the cars of the moving train. He claims that his duty at the time he was injured required him to get down from the side of the moving train for the purpose of getting off to throw a switch, so as to take out of the train three loaded cars and place them on a siding. He alone testifies as to the intention to take these three cars out of the train and place them on the siding. To the contrary of this is the testimony of the train conductor, of the head brakeman, of the engineer, of a brakeman who was put in the plaintiff's place after he was injured, of a brakeman on the drill engine that made up the train, and of the yard master, all of whom testify that no cars were, or were to be, taken out of the train to be put upon a siding. The clear weight of the evidence is that, if the plaintiff was injured as he testified, he was at the time of the injury in a place where his duties did not call him, and was injured through his own negligence. The rule to show cause should be made absolute. |