Union Pacific Railway Company v. Snyder
This was an action brought by William Daniels against the Union Pacific Railway Company, in the district court for the third judicial district of the territory of Utah, to recover damages for personal injuries alleged to have been sustained because of defendant's negligence. During the pendency of the writ of error in this court, Daniels died, and his administrator (Wilson I. Snyder) was substituted.

The complaint alleged that plaintiff was an employ e of the defendant company as brakeman on a freight train; that the company by its negligence and carelessness allowed a wheel of one of its freight cars to become defective through a large open crack in it, which rendered the car unsafe; that the crack was an old one, and could have been easily discovered by a proper inspection of the wheels; that it was the duty of the defendant to inspect the wheels of all cars used by it and running on its road, at stations at short intervals along the line of the road; that an inspecting station was established at Green River, Wyo., at which point the defect would have been discovered had the company's inspection service at that point been suitable and sufficient; that the company negligently and wrongfully employed incompetent agents in that service; that they did not employ sufficient in number; that those employed negligently inspected; that the defect by which the accident and ensuing injuries were caused was not discovered, by reason of the company's negligence; and that plaintiff, without fault or negligence on his part, was injured by the breaking of the defective wheel and the train being thereby thrown from the track.

The answer denied the essential averments of the complaint. Plaintiff recovered a verdict, and defendant moved for a new trial, which was overruled, and judgment rendered, from which an appeal was prosecuted to the supreme court of Utah territory, where it was affirmed. The opinion is reported in 6 Utah, 357, 23 Pac. 762. To review that judgment this writ of error was sued out.

The errors assigned and relied on at the bar were: That the court erred in overruling defendant's motion for a nonsuit made at the colse of plaintiff's testimony. That the court erred in giving each of the following instructions:

'(8) In this case, if you find that the plaintiff was injured in consequence of the wreck of the train caused by a crack and break in one of the wheels of the car on a train operated by the plaintiff, if you find that by the exercise of proper care and caution in inspecting the wheels the crack was of such a nature that it might have been discovered by the agents or servants of the defendant employed for that purpose, then such neglect to discover the crack was negligence on the part of the defendant, and for which it may be held liable in this action.

'(9) If you find that there was a want of care and diligence on the part of the persons engaged in inspecting the wheels of the cars of defendant, and that the accident was caused thereby, it is not a defense for the defendant to show that it used proper diligence and care alone and only in the selecting of such agents, but the defendant is responsible for the acts of his employees in repairing and inspecting machinery to the same extent as if he were himself present doing the act.'

And that the court erred in refusing to give each of the following instructions requested by the defendant:

'Fourth. The plaintiff by his contract of hiring was held to assume the risks of injury from the ordinary dangers of the particular employment and the nature of the business engaged in, and, if you find from the evidence that the accident causing the injury in question was one of the perils incident to the employment, your verdict should be for the defendant.

'Fifth. The presumption of the law in this case is that the defendant exercised proper care and diligence in employing competent and sufficient number of servants to safely carry on its several departments of labor, and in furnishing safe machinery and appliances with which the plaintiff was to do his work, and the burden of proof to show the contrary is on the plaintiff.

'You are further instructed that as between employer and servant, as in this case, negligence on the part of the former is not proven nor to be inferred from the existence of a defect which caused the injury.

'Sixth. Although the inspector of the defendant at Green River station, whose duty it was to inspect the said broken wheel, was guilty of negligence in making the inspection, and that negligence resulted in the wrecking of the train on which the plaintiff was, and the injury of which he complains, still he cannot recover in this action unless it appears from the evidence that the defendant was guilty of negligence either in the appointment of such inspector or retaining him in his position, and to establish such negligence on the part of the defendant not only the incompetence of such inspector must be shown, but it must also be shown that defendant failed to exercise ordinary care to ascertain his fitness for that service prior to his appointment, or failed to remove him after his incompetency had come to the notice of the defendant or to some officer or agent of defendant having power to remove him, or after such incompetency would have been ascertained by the exercise of ordinary care on the part of the defendant or such agent or officer.

'Seventh. To render the negligence of the inspector whose duty it was to inspect the said broken wheel the negligence of the defendant, or to render the defendant liable therefor, it is incumbent on the plaintiff to prove that the said inspector was appointed to or retained in his said position with knowledge on the part of the defendant, or some officer or agent of it having the power of appointment and removal, that he was incompetent, or that such knowledge might have been obtained by the use of reasonable and ordinary care and diligence on the part of the defendant or of such officer or agent.'

Artemas H. Holmes and Jno. F. Dillon, for plaintiff in error.

Arthur Brown, 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