Union Pacific Railway Company v. O'Brien
This was an action brought by Nora O'Brien against the Union Pacific Railway Company, in the circuit court for the district of Colorado, to recover damages for the death of her husband, John O'Brien, who was in the employment of the defendant as a locomotive engineer, running on the South Park Division of the company's line, and was killed by the derailment of his engine. The evidence tended to show that, at the time of his death, O'Brien, who had been an engineer upon the road for 7 or 8 years, was bringing a freight train of 23 cars from Como, Colo., to Denver, and was running through that part of the mountains known as 'Platte Ca non'; that O'Brien left Como at 7 or 8 o'clock on the evening of September 3, 1890, and that the accident occurred at 1 o'clock in the morning of September 4th; that the line of railway followed the course of the South Platte river, and that there were numerous cuts thereon, caused by the intersection of the line with the spurs projecting from the foothills along which the line was built; that the locomotive was derailed by reason of sand and gravel, which had been deposited on the track to a depth of some 7 or 8 inches, and to the extent of from 10 to 20 feet; that this deposit was in a cut, approached by a curve to the left, and then curving to the right as the track entered the cut,-a double curve; that the river bank of the cut was about 7 or 8 feet high, the other bank being much higher and very steep, sloping back up the mountain side; that down the upper bank ran a narrow gully which, in rainy weather, brought down water, carrying sand and disintegrated rock; that this gully had had an outlet into the river before the track was constructed across it; that there was no opening or culvert under the railroad track through which the water and material brought down could escape; that a small ditch ran alongside the roadbed, but, if the water coming down was greater in quantity than this ditch could carry, then the surplus would run over and upon the tracks of the railroad; and that rain had fallen the evening previous to the accident, and the water, rushing down the gully, had deposited this mass of sand and gravel upon the track. There was some evidence that the gully was narrow, crooked, and concealed by the hills.

One Hall, a locomotive engineer familiar with the road, testified that there were many cuts on the line; that sand was frequently found thereon in several places; that there were usually rains about the latter part of August or September; and that, in rainy weather, on account of the steepness of the mountains, more or less material would be deposited on the track. Defendant then propounded this question on cross-examination, 'Are the engineers here aware of that fact'? to which plaintiff's counsel interposed an objection, which was sustained, and defendant excepted. The witness had also testified that a culvert would have added to the safety of this cut, and was asked this question by defendant: 'You said you thought the culvert would make it much safer, but is not that cut constructed there, and the water run out of it, exactly as the cuts are ordinarily constructed, on roads running through such places?' The question was objected to, the objection sustained, and defendant excepted.

George Warnick, the locomotive fireman who was on the engine when the accident happened, gave evidence on defendant's behalf tending to show negligence on the part of deceased, and was asked, on cross-examination, whether he had, in answer to certain specified questions, put to him at the hospital on the Sunday following, stated that neither he nor the engineer was to blame for the accident. This he denied, and leading questions were permitted to be propounded to a witness called in rebuttal to contradict him, to which exceptions were saved.

Defendant asked the court to give the jury the following instructions:

'(1) The court is asked to instruct the jury that the burden of proof is upon the plaintiff to show that the accident occurred by reason of the negligence of the defendants, and that the plaintiff was in the exercise of due care at the time of the accident, and that due care in such a case required of the deceased that he be vigilant and watchful to avoid such danger as his experience of the road must have made him aware he must expect in such places as the place where the accident occurred, and under the circumstances detailed by the witnesses, to wit, at time when heavy rains had been met with, and that there has been offered no evidence whatever upon that point by the plaintiff, not even a reputation for care, but there has been evidence offered by defendant that he was not in the exercise of due care; nor has there been any evidence offered as to whether, if the sand had been discovered at the time it might have been discovered, he could or could not have applied the air in time to prevent the accident.

'(2) The court is asked to instruct the jury that a party taking employment as an engineer in running a locomotive assumes the risks that are incident to the employment, and to the running of locomotives over the roads operated by his employer; and, if the jury believe that the country through which this road ran, and its location, was such that sand was frequently deposited on the track, then the deposit of sand on the track when heavy rains occurred must be taken as one of the ordinary risks of his employment, and the duty of the engineer was to be vigilant in avoiding it; and, if the jury believe that the lack of such vigilance on the part of deceased contributed to the accident, then the plaintiff cannot recover.

'(3) The court is asked to instruct the jury that the duty that an employer owes to the employe is to exercise ordinary care in providing the employe a safe place in which to work, and what is ordinary care is such care as men of ordinary prudence use in similar circumstances in the same employment.

'(4) The court is asked to instruct the jury that there is no evidence to show that the construction of a culvert at the place where the accident happened would have avoided, or would probably have avoided, the accident.' The court refused to give each of these instructions, and defendant excepted.

The court then charged the jury at large, leaving to them the issues of negligence on the part of the company in not properly constructing the track, in that no outlet was provided for the water which would be liable to come down on the track and deposit sand and other obstructions thereon, and of contributory negligence.

The court advised the jury, among other things, that, as the road, at the place where the accident occurred, was built across the mouth of a gulch, and from all the circumstances it would seem that it would have been practicable to make a culvert under the track at that place, keeping open the channel towards the river, through which the sand might have washed out, and in that manner obstruction might have been avoided, if they believed, from the evidence, taking into consideration the size of the requisite opening, and the quantity of sand and gravel coming down through the gulch, and all the circumstances, the track might have been built, at reasonable expense, so as to avoid the possibility of the sand coming upon the track and obstructing it, they were at liberty to find that the company was negligent in respect to the manner of building the track at that place; and also that, independently of the testimony of Hall on that subject, the jury, 'having regard to the testimony before you, the situation of the road, and the topography of the ground, the gulch coming down in the way described by the witnesses,' might, on their own judgment and knowledge of such matters, determine, in their own minds, 'whether it was practicable to make a culvert there, with reasonable cost, which would have the effect of carrying away the sand and gravel, so it would not be an obstruction upon the track.'

To these parts of the charge defendant excepted.

The jury found in favor of plaintiff, and, judgment having been entered on the verdict, the company carried the case to the circuit court of appeals for the Eighth circuit, which affirmed the judgment. 4 U.S. App. 221, 1 C. C. A. 354, 49 Fed. 538.

Thereupon this writ of error was brought.

John M. Thurston, for plaintiff in error.

C. S. Thomas, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
Union Pacific Railroad