It is no error to refuse to give an instruction when all its
propositions are embraced in the charge to the jury.
It is no error in an action like this to refuse an instruction
which singles out particular circumstances and omits all reference
to others of importance.
This case was fairly submitted to the jury with no error of law
to the prejudice of the defendant.
This writ of error brings up for review a judgment of the
Supreme Court of the Territory of Utah, affirming a judgment
Page 163 U. S. 281
of the District Court of the Third Judicial District in that
territory in favor of the defendant in error, based upon the
verdict of a jury against the Rio Grande Western Railway Company
for the sum of $13,370.
It is averred in the complaint that on or about the 11th day of
July, 1891, the plaintiff, Leak, was engaged in his business of
hauling ore to cars of the defendant situated on its track, and was
traveling with his team of horses and wagon on a wagon road usually
traveled, and provided by defendant to be traveled, in the business
of the hauling of ores to its cars; that when he had reached the
place or crossing where the wagon road crossed the railroad track,
the defendant carelessly and negligently caused a train of cars to
approach the crossing, and then and there to pass rapidly over its
track, and negligently and carelessly omitted its duty while
approaching that crossing to give any signals or warning whatever
of the approach of its cars, or to stop or to slacken the speed
thereof, by reason whereof the plaintiff, without any fault on his
part, was unaware of their approach; that in consequence of this
negligence and carelessness of defendant the train of cars struck
the plaintiff and his horses and wagon and overset the wagon,
whereby he was thrown with great force and violence upon the
ground, and underneath said wagon and cars, and thereby greatly
bruised, crushed, and maimed, in so much that it became necessary
to amputate, and the left leg of the plaintiff was amputated,
inflicting upon him lasting and permanent bodily injuries, causing
him great bodily pain and mental anguish, damaging him in the sum
of $20,000, and compelling him to lay out and expend for doctor's
medical attendance $105.
The complainant also asserted a claim for the value of his
horses and wagon alleged to have been killed and destroyed by
reason of the carelessness and negligence of the defendant company
as above alleged.
The answer puts in issue the allegations of the complaint, and,
in addition, states:
"If the plaintiff sustained any injuries or damages whatsoever,
the same were caused and occasioned solely by reason and because of
his own negligence
Page 163 U. S. 282
and carelessness in driving into and remaining in a dangerous
place, knowing of the danger, and in negligently and carelessly
failing to observe the approach of the cars referred to in the
complaint when the means and opportunity of observation were open
to him, and in not removing himself from the place of danger after
he knew of the existence thereof and after he had been warned
thereof, and not because or by reason of any negligence or
carelessness on the part of the defendant, its officers, agents, or
servants."
The court, after stating that the action was not to recover
damages in consequence of any other negligence than that described
in the complaint, and that the negligence complained of was that
the defendant carelessly and negligently caused its cars to
approach the crossing, and failed to give any signal or warning
whatever of their approach or to stop or to slacken their speed
before the injury, said:
"The defendant, in its answer, denies the allegations of the
complaint and alleges that the plaintiff was also guilty of
negligence that contributed to the injury, and it is for the
gentlemen of the jury, in the light of all the evidence, after
carefully considering it, to determine first, whether the defendant
was guilty of the negligence described in the complaint; second, if
you should find that defendant was guilty of negligence described
in the complaint, it is then your duty to consider and determine
whether the plaintiff himself was guilty of negligence that
contributed to the injury. In determining the question of
negligence both on the part of the plaintiff and defendant, you
should consider all the circumstances under which the defendant
caused the acts to be performed, as alleged in the complaint, and
under which its agents or servants failed to act, if you find they
did fail in such respect. You have a right to take into
consideration the conditions surrounding the injury, the situation
of the parties, the location of both the railroad tracks and the
wagon road, if you believe there was a wagon road from the
evidence, and their location with respect to each other, and the
fact that the plaintiff was hauling ore, if you believe that he
was. (As to that, I presume, there is no dispute.) You have a right
to take into
Page 163 U. S. 283
consideration the cars of the defendant, and their situation and
location upon the ore track. You have a right to take into
consideration the crossing, as to whether the defendant placed the
crossing there for the plaintiff and others to travel over and upon
the wagon way, if you believe there was a wagon[way] on which
persons usually traveled, and that the plaintiff at the time of the
injury was traveling upon the wagon way. You have a right to take
into consideration the fact that the train of cars, one of which
struck plaintiff's wagon (as to that, I presume, there is no
dispute), you have a right to take into consideration the fact that
it came down grade without an engine attached to it, and then
passed up a slight grade at the time it struck the plaintiff's
wagon, if [you] believe from the evidence that it did so pass down
and up. It is your duty to take into consideration all of the
evidence bearing upon the question of negligence, and, in the light
of it all, you must determine whether the defendant was guilty of
the negligence charged, or whether the plaintiff was guilty of
negligence contributing to the injury."
The defendant excepted to that portion of the above instruction
in which the court said that the jury "should consider all the
circumstances under which the defendant caused the acts to be
performed as alleged in the co plaint."
The court properly instructed the jury in relation to the degree
of care required at the hands of the defendant and its servants, as
well as to their right to judge of the credibility of the
witnesses. It further said:
"It is your duty to weigh the evidence carefully, candidly, and
impartially, and in so weighing it you should be careful to draw
reasonable inferences; not to pick out any particular fact and give
it undue weight, but you should give it such weight as you think it
is entitled to as reasonable men looking at it impartially. You
should consider the evidence all together. Where there is a
conflict in the testimony, you should reconcile it, if you can,
upon any reasonable hypothesis. If you cannot reconcile their
testimony, then you must determine whom you will believe. You are
the sole judges of the facts. If you find the issues for the
plaintiff, you should consider the extent of the injury
Page 163 U. S. 284
as it appears from the evidence, whether it is permanent or
temporary. You have a right also to take into consideration the
physical pain and mental anguish caused by the injury, and the
extent which the plaintiff has been deprived of the capacity to
earn a living or to accumulate money or other property. You have a
right to take into consideration the injury to his property, the
fact that his horse was killed, the injury to the wagon and the
harness, if you believe from the evidence that they were injured,
and, so considering all the evidence with respect to the injury of
the plaintiff and his property as described in the complaint, you
should give him such compensation as will remunerate him for the
injury sustained. You must look at it in a pecuniary point of view,
estimating his loss in money."
MR. JUSTICE HARLAN, after stating the case, delivered the
opinion of the Court.
1. At the trial, the defendant asked the court to instruct the
jury that:
"It was the duty of the plaintiff, before he crossed the line of
defendant's railway or approached it so closely that he might be
injured by cars passing thereon, to look and listen up and down the
track for approaching cars, and if he failed to so look and listen
just prior to and up to the time of the accident, and if by so
doing he could have discovered the approaching cars in time to have
avoided the accident, his failure to so look and listen was
negligence contributing to his injury, and your verdict must be for
defendant unless you believe defendant's servant in charge of said
cars discovered plaintiff's danger in time to have avoided the
accident by the use of ordinary care."
The refusal to give this instruction was not error, for the
reason that all the propositions in it were embraced in the charge
to the jury, and it was not necessary to repeat them
Page 163 U. S. 285
in special instructions asked by either party. The court had
previously charged the jury as follows:
"That, though the defendant may have been guilty of negligence
that contributed to the injury, yet if the plaintiff was also
guilty of negligence that contributed to the injury, he cannot
recover, and in determining whether he acted with due care, you may
take into consideration the circumstances under which he was
acting. You have a right to take into consideration he was
traveling upon the traveled way usually traveled by persons hauling
ore to this train. You have a right to take into consideration the
observation that he made, so far as the evidence shows it, whether
he looked out, as he should have done, for the danger of coming
cars or whether he listened. You should take into consideration all
of the circumstances -- all that he did and all that he failed to
do -- in order to determine whether he acted with due care or was
guilty of negligence. The court further charges you that if the
plaintiff attempted to cross defendant's line of railway, or to
approach so near it as injury might have resulted to him, where he
should, by the exercise [of] ordinary care, see that it was
especially dangerous, it was plaintiff's duty to use an amount of
care proportionate to the danger. Of course, when persons are
acting under dangerous circumstances and conditions, it is their
duty to act with respect to the danger that surrounds them, and to
use a greater degree of care where there is much danger than where
there is but little."
The jury were also instructed that it was their duty to take
into consideration all the evidence bearing upon the question of
negligence, and, in the light of it all, determine whether the
defendant was guilty of the negligence charged, or whether the
plaintiff was guilty of negligence contributing to the injury.
Thus, the jury were distinctly told that, taking into
consideration all the circumstances, all that the plaintiff did or
failed to do, including such observation as the plaintiff made, so
far as the evidence showed it, they must determine whether "he
looked out, as he should have done, for the danger of coming
trains, or whether he listened." This is a distinct affirmation
Page 163 U. S. 286
of the duty to look out for the coming of trains. When to this
specific reference to the duty of looking and listening for
approaching trains was added the general instruction that the
plaintiff must have used such care as was proportionate to the
danger of injury resulting from the crossing of a railroad track,
otherwise he could not recover, no foundation is left upon which to
rest the charge of error in refusing the particular instruction
asked by the defendant.
2. It is assigned for error that the trial court refused to give
the following instruction asked by the defendant:
"If, before crossing defendant's line of railway or approaching
the same so closely that he might be injured by cars passing
thereon, the plaintiff did look and listen for approaching cars,
and ascertained that such cars were approaching, or might have so
ascertained if he had looked and listened with ordinary care, then
it was negligence for the plaintiff to drive so close to such
railway as to be injured by passing cars, although the plaintiff
may have believed that he could succeed in crossing said line
before the cars reached the place of collision, and your verdict
must be for defendant unless you believe that defendant's servant
in charge of said cars discovered plaintiff's danger in time to
have avoided the accident by the use of ordinary care."
The only distinct thought in favor of the defendant embodied in
this instruction not covered by the charge of the court was that it
was negligence in the plaintiff to drive so close to the railroad
as to be injured by passing cars. But upon this point the charge of
the court was full and abundantly explicit, for the jury were told
that they must look at all the circumstances in determining whether
the plaintiff acted with due care or was guilty of negligence; that
if he attempted to cross the railroad or to approach so near to it
that injury might have resulted, he was under a duty to use such
care as was proportionate to the danger, and generally that all
persons acting under dangerous circumstances and conditions must
have due regard to the danger that surrounds them, and use a
greater degree of care where there was much danger than where the
danger was but little.
Page 163 U. S. 287
3. It is next assigned for error that the trial court refused
the following instruction asked by the defendant:
"If the defendant licensed the plaintiff to go with his team in
that portion of its yard where plaintiff was injured, yet defendant
would not be liable to plaintiff for any injury resulting to him
from any condition of the premises known to the plaintiff from the
ordinary nature of the business carried on by it there."
This instruction might well have been refused as inapplicable to
any issue made by the pleadings. The plaintiff did not ground his
action upon any defective condition of the defendant's premises,
nor upon the manner in which its business on such premises was
ordinarily carried on. His claim for damages was placed solely on
the ground of the defendant's negligence in running its cars over
its track. Nevertheless, the court, out of abundant caution,
distinctly charged the jury that the defendant was not liable to
the plaintiff for any defect in the manner of locating or in the
construction of its tracks or switches; that the location or
construction of the switches was not alleged as a cause of action,
and that it was the duty of the jury, in order to determine whether
the plaintiff or the defendant acted negligently or with due care,
to take into consideration the location of the tracks, and the
whole situation as shown by the evidence, in order to determine
whether they did act prudently and with good care, or, on the
contrary, whether they acted with negligence. These instructions
meet any possible objection to the refusal of the trial court to
give the above instruction asked by the defendant.
4. Another assignment of error relates to the refusal of the
trial court to give the following instructions:
"If the plaintiff saw the cars coming, and knew that there was
danger of a collision, or by the use of ordinary care could have so
seen and known in time to escape therefrom by leaving his wagon,
and if, notwithstanding such danger, he remained in his wagon for
the purpose of attempting to save his wagon or horses, then you
should not find a verdict in favor of the plaintiff in respect to
any injury to his person unless you believe from the evidence that
the brakeman in charge of said cars saw plaintiff's
Page 163 U. S. 288
danger in time to have avoided the accident by the use of
ordinary care."
It was not an error to refuse this instruction. It was liable to
the objection that it singled out particular circumstances and
omitted all reference to others of importance. In
Grand Trunk
Railway v. Ives, 144 U. S. 408,
144 U. S. 433,
it was said that:
"In determining whether the deceased was guilty of contributory
negligence, the jury were bound to consider all the facts and
circumstances bearing upon that question, and not select one
particularly prominent fact or circumstance as controlling the
case, to the exclusion of all the others."
If the question of the ability of the plaintiff to have escaped
personal injury "by leaving his wagon" was involved in the issue as
to contributory negligence, the jury were entitled to consider the
evidence relating to that matter under the general direction to
look at all the circumstances in determining whether the plaintiff
was injured without fault or negligence on his part. The charge
upon that subject was ample for all the purposes of a fair trial,
and no injustice was done to the defendant by the refusal of the
court to single out the fact that the plaintiff did not jump from
or leave his wagon as the defendant's train approached, and take
the chances of being personally injured in that way. Besides, the
instruction asked by the defendant was so framed as to leave out of
view any element of personal danger to the plaintiff by attempting
to leave his wagon, provided, by getting out of it, or by jumping
from it, he could have escaped injury by coming into collision with
the defendant's cars. The jury might well have understood the
instruction to mean that the possibility or probability of personal
injury to the plaintiff by leaving his wagon was an immaterial
circumstance if, by adopting that course, he could have escaped
injury by actual collision with the cars of the defendant. The
railway company could not escape responsibility for the negligence
of its servants, resulting in personal injury to the plaintiff, by
showing that the latter might not have been so seriously injured if
he had left or jumped from his wagon. In the very nature of things,
it would have been impossible for the jury, under the circumstances
of the accident, to have
Page 163 U. S. 289
determined with any certainty whether the plaintiff could have
left his wagon without risk of being injured.
Upon a careful examination of the record, we have no reason to
doubt that the case was fairly submitted to the jury, and, no error
of law to the prejudice of the defendant's rights having occurred,
the judgment of the supreme court of the Territory of Utah
affirming the judgment of the trial court is
Affirmed.
