Boyle v. Union Pac. R. Co defective: held, that he was not guilty of contributory negligence as a matter of law. Same Same-Same. Whether a conductor of a freight train, who was injured in passing along his train while in motion, was exercising due care and caution, held, under the facts, to be a question for the jury. Master's Duty as to Rules.† Where a master has a large number of persons employed, and the safety of the employment mainly depends on that all of the employees perform their duties at stated times and in a given manner, it is the duty of the master to promulgate and furnish the employees with suitable rules for their guidance and safety. Violation of Rule as Defense-Abrogation. A conductor was injured while running his train in violation of a rule governing the movements of the company's trains, but was doing so under a time order, which, in effect, authorized him to ignore the rules. The rule had never been observed when trains were run under time orders: held, that the company could not interpose the violation of the rule as a defense to an action by the conductor. Bartch, J., dissenting. Appeal from District Court, Summit County; S. W. Stewart, Judge. Action by Daniel L. Boyle against the Union Pacific Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed. On the 26th day of May, 1900, plaintiff was, and for 13 years. prior thereto had been, employed by defendant corporation as a freight conductor. On the day in question (May 26, 1900) he was in charge of a freight train consisting of 44 cars and a caboose. The train was en route from Ogden, Utah, to Omaha, Neb. Attached to the train, and immediately in front of the caboose, was what is known as a "hotel supply' car, which was used to ship and supply vegetables and meats to hotels along the railroad between Omaha and Ogden. This car would not couple automatically with the coupler on the caboose, which made it necessary to couple it with link and pin, thereby making the distance between it and the caboose so great that plaintiff and other employees of the defendant company who were operating the train could not step from the top of one car to the other. It was without doors in the ends, and had no platform, end ladders, grab or hand irons. In fact, it was without any of the equipments and conveniences necessary to enable plaintiff and the other members of the train crew to pass through or over it from the caboose to the other cars. The car in question was equipped for and belonged to the passenger service, but was sometimes placed in and hauled with the freight cars. Plaintiff left Ogden at about 4:10 in the morning, and arrived at Echo at 10 o'clock a. m. Having stopped at several stations between the two points to load and unload freight, he was behind time. At Echo he received an order †See note appended to Wright's Adm'r v. Southern Ry. Co. (Va.), 5 R. R. R. 438, 28 Am. & Eng. R. Cas., N. S., 438. Boyle v. Union Pac. R. Co to meet a certain freight train at Emery, the next station, which is about nine miles east of Echo. Being behind time, he also got what is known as a "time" order, which informed. him that two passenger trains coming west, and traveling at the rate of 50 or 60 miles an hour, would pass Castle Rock without stopping; one at 11:30 a. m., and the other 10 minutes later. Castle Rock is the next station, and about 6 miles east of Emery. Plaintiff had the right, under this time. order, to either side-track his train and wait at Emery until the passenger trains passed, or to go on to Castle Rock, provided he had sufficient time to make the run and side-track before the arrival there of the passenger trains. Plaintiff left Echo at 10:28, and it was agreed between him and the engineer that if they found the freight train they were to meet side-tracked at Emery they would go on to Castle Rock without stopping, as they would be compelled to stop over at Emery for 12 hours if they side-tracked there for the passenger trains, whereas by going on this delay would be avoided. They arrived at Emery at 11:04 or 11:05, and found the freight train side-tracked, and went on without stopping, expecting to reach Castle Rock before the arrival of the passenger trains which were to pass there at 11:30. The schedule time between Emery and Castle Rock for plaintiff's train was 40 minutes, but, as will be observed, on this occasion he had but 25 or 26 minutes in which to make the run. According to his own testimony, this was "short time," even if his train met with no delays. A single stop, however short, would have made it impossible for him to get his train to Castle Rock before the arrival there of the passenger trains. The record shows that, while it was not compulsory for him to do so, yet under the time order he was expected to go on to Castle Rock, provided he could get his train there in time to clear the main track for the passenger trains. The record also shows that it was not only necessary, but the duty of plaintiff, the time being short, for him to be at the head of his train after it left Emery. Soon after passing Emery he started to go to the head of the train, and in order to get on top of and over the hotel supply car, he set a hand brake that was at the end and attached to the car. The brake when set was held in place by a small piece of iron known as a "dog," which, as the brake was tightened caught in the teeth of a ratchet wheel. Plaintiff, having no other means of passing over the car, stepped on top of the brake thus fastened, and placed his hands on the roof of the car, and was in the act of pulling himself onto the top thereof, when the brake on which he was standing came loose and turned, and, there being no grab or hand irons on the car for him to hold to, he was thrown from the train, and run over, which resulted in the loss of one foot and permanent injury to the other. On former occasions he had with safety and in the same manner climbed onto other cars constructed and equipped similarly Boyle v. Union Pac. R. Co to the one in question. One witness testified that soon after the accident he examined the brake, and found it to be so loose that the "dog" played back and forth over the ratchet wheel, and that the "dog" contained a small nick, that appeared to be an old defect, which defect added to the inefficiency of the brake. The foregoing are, in substance, the facts relied upon by plaintiff for a recovery. When plaintiff rested, defendant moved for a nonsuit in the following terms: "Comes now the defendant, and moves the court for a nonsuit in this case, for the reason that plaintiff has failed to sustain the allegations of the complaint in this: (1) That plaintiff has failed to show that he exercised due care, or was without fault, in attempting to cross from said caboose onto said supply car. (2) Plaintiff has failed to show that the failure to equip said car in the manner alleged in said complaint made the duties of said plaintiff extraordinarily hazardous or dangerous, and that said plaintiff was ignorant of said condition; and for the further reason that plaintiff has not established the fact that such danger was not so obvious that a reasonably prudent man, in the exercise of such urgent duties as plaintiff was called upon to perform, would have undertaken to perform. (3) The plaintiff has failed to show any pressing or urgent necessity for plaintiff to go to the front of the train, and cross from said hotel car. (4) Plaintiff has failed to show that he had no other or safer means of crossing from one car to another. (5) Plaintiff has failed to show that said supply car was negligently or carelessly in a condition of disrepair, in this: That the dog which should have prevented the brake wheel upon which plaintiff stepped from turning and holding it fast was out of order, or so worn that it did not hold said wheel firmly, and permitted the same to turn when plaintiff stepped thereon, which was unknown to plaintiff, or could not have been discovered by him, and which was known or might have been known to defendant. (6) That the evidence shows that the brake wheel, dog, and ratchet were in reasonably good repair and order, and they would hold the brake when used for any use for which intended to be used. 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 motion was overruled, to which ruling defendant duly excepted. Defendant introduced testimony which tended to show that the brake on the car was in good order and repair at the time of the accident. It also introduced in evidence certain rules regulating the running and management of its trains, at the time of the accident. So far as material to this case, they are as follows: "Conductors and engineers will be held equally responsible for the violation of any rule governing the safety of their trains, and they must take every precaution for the pro Boyle v. Union Pac. R. Co tection of their trains, even if not provided by the rules." "Rule 90. No train must leave a station expecting to meet or to be passed at the next station by a train having the right of track, unless it has full schedule time to make the meeting or passing point and clear the track by the time required by Rule 86; which provides that, "When a train of inferior class meets a train of superior class on a single track, the train of inferior class must take the siding, and clear the train of superior class ten minutes." Mr. Knoder, who was the engineer on plaintiff's train at the time of the accident, and in defendant's employ at the time of the trial, was called as a witness for defendant, and on cross-examination testified as follows: "Q. Your attention has been called to Rule No. 90. I will ask you whether that rule is observed by trains running on schedule time? A. No, sir. Q. How long has that condition of affairs existed, so far as you know? A. Always. Q. You said to Mr. Young that you had until 11:30 to make Castle Rock. Was that the instruction that you received in your time order? A. Yes, sir; as long as we had time to make Castle Rock by 11:30, it was our duty to do so. I have been an engineer about fourteen years." The issues were tried by a jury, who returned a verdict for plaintiff, and assessed his damages at $10,000. Defendant appeals. After the appeal in this case had been perfected, appellant made a motion, supported by affidavit of its counsel, to amend the record by including therein certain copies of requests for instructions to the jury made by defendant at the trial of the case and refused by the court, which requests were lost, and therefore were not made a part of the bill of exceptions; also to include in the bill of exceptions certain exceptions taken by defendant to instructions given by the court to the jury. It appears from the affidavit of the stenographer who reported the case that the exceptions appear in his stenographic notes, and were transcribed by him. The exceptions referred to were omitted from the bill of exceptions through the inadvertence and oversight of defendant's counsel, and the mistake was not discovered until after the appeal was taken and appellant served with a copy of respondent's brief in the case. Le Grand Young, for appellant. W. L. Maginnis and A. J. Weber, for respondent. MCCARTY, J., after stating the facts, delivered the opinion of the court. It will be observed that appellant not only asked permission to amend the bill of exceptions by incorporating therein. matters which appear in the reporter's transcript of the proceedings, and omitted from the bill of exceptions, but to substitute copies of papers that were lost before the bill of exceptions was prepared, and make such copies a part of the Boyle v. Union Pac. R. Co record on appeal. Ajudge before whom a case has been tried may, on a proper showing, allow copies of lost papers to be substituted and incorporated into the bill of exceptions, as the record shows was done in this case, together with other material matters that have been omitted; but this court possesses no such authority. Cases appealed must be heard and decided upon the record made in the court from which the appeal is taken. 3 Ency. Pl. & Pr. p. 502; Hayne, New Trial & Appeal, 271; Elliott, App. Proc. § 206. Section 9. art. 8, of the Constitution of this state, so far as material here, provides: "From all final judgments of the district courts there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law." The "regulations" are found in sections 3286-3290, Rev. St. 1898. Section 3286 provides that the judge before whom a case has been tried must settle the bill of exceptions, and must sign and certify to the same. Section 3290 in part provides as follows: "If such judge, referee, or judicial officer before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the supreme court may, by its orders or rules, direct." Rule 25 of this court, so far as material in this case, provides as follows: "If any judge before whom a cause has been tried or heard is absent from the state or refuses to settle a bill of exceptions, or if no mode is provided by law for the settlement of the bill of exceptions in any case, then the bill of exceptions may be settled, allowed and certified by the chief justice, or any one of the judges of this court." It will readily be observed that under the foregoing provisions of the Constitution and statute and the above rule of this court the amendment asked for by appellant cannot be allowed. Aside from any constitutional or statutory restriction or court rules, it would not only be unfair to the trial court for this court to permit amendments to be made to bills of exception after they have been signed, certified, and allowed by the judge who tried the case, but such a practice, if followed, would open the way for vexatious delays, and in course of time lead to infinite confusion. We will now consider the alleged errors as assigned by appellant in the order in which they are discussed in its brief. Appellant's first contention is that the trial court erred in overruling its motion for a nonsuit on the ground that the evidence showed that plaintiff was guilty of contributory negligence, and that such negligence consisted in running his train between Emery and Castle Rock at the time of the accident in question in violation of the schedule and printed rules of the company, thereby creating the necessity, if any existed, for him to go from the caboose to the head end of the |