Minty v. Union Pacific Railway Co.

Citations

• 2 Idaho 471
• 21 P. 660
• 1889 Ida. LEXIS 17

Syllabus

<p>Master and Servant — Risks.—The traveling auditor of a railroad company, whose duties are to travel on the company’s cars from stations on its roads and audit accounts, is a servant of the company’s, and assumes the ordinary risks incident to the employment.</p> <p>Same — Accident—Presumption.—-Where such servant is injured in an accident resulting in the derailment of the ear on which he is riding, it will be presumed, until the contrary is shown, that the company was not in fault in providing suitable instrumental-ities for the business, and had no notice of any defect or other causes of the accident.</p> <p>What Party Injured must Show. — Before the servant can recover, he must show that the injury did not arise from a defect obvious to himself, or which, by the exercise of ordinary care, he might have known.</p> <p>Hazard of Business. — He must show it was not from hazard incident to the business.</p> <p>Charges to the Jury. — Where the judge charged the jury that, if the car was overturned by reason of any defect in said car, or of the track on which it was running, this is in itself presumptive evidence of neglect on the part of the defendant, and the burden is then on the defendant to show that there has been no negligence whatever, held, that as between master and servants such presumption of negligence does not so arise, and the charge was erroneous.</p> <p>Same.- — -The court also charged, while the burden of proof is on the plaintiff to show negligence of the defendant, yet it is sufficient for that purpose, prima facie, if he show he suffered injury without his fault, while lawfully traveling in the ear of the defendant, and that the cause of that injury was probably the negligence of the defendant, held, to be error, and - that whether it is so or not is in the knowledge of the defendant, and the defendant must then show what the real cause of the injury was, and if the defendant does not choose to give the explanation, the jury will be authorized to