defendant's request to direct a verdict, bound to accept the statement of such witness as conclusive on the subject, when there were other facts and circumstances in the case from which the jury could properly find otherwise. But, independent of these considerations, we think the principle invoked by appellant has no application—at least not to the extent that the court ought to have declared the deceased guilty of negligence as matter of law. Assuming that the deceased was not injured by the first movement of the engine, and, further, that the engine was suddenly moved without warning, as the jury could properly find from the evidence, we are not prepared to say that as matter of law the deceased was guilty of negligence in attempting to escape a perilous situation in which he found himself, and which was occasioned by the defendant's negligence, because, in so doing, he attempted to get out at a place more dangerous than another, or because he did not exercise the best judgment under the circumstances. The situation does not involve the principle that where the servant in the performance of his services has two ways open to him, one of which is natural and reasonably safe and the other obviously dangerous, and where he voluntarily selects the dangerous method. It rather presents a condition where the servant attempted to escape a perilous situation which was created by the negligence of his master. Furthermore, it cannot be said as matter of law that in leaving the pit the deceased had But open to him two ways, one safe, the other dangerous, in the sense in which the principle invoked is generally applied. The situation was rather where both ways were dangerous; one, of course, more so than the other. it can hardly be said that to crawl out between the wheels of the engine and the tender when in or about to be put in motion was reasonably safe. About all that can be said of it is that such way, because of the greater space, did not involve as much danger as the other. A person may, of course, be negligent under certain circumstances in choosing the one instead of the other. We, however, think the question here was one of fact, and therefore the defendant's request to direct a verdict was properly refused. The defendant further requested the court to charge the jury as follows: "I charge you further as matter of law that it was the duty of the plaintiff's intestate to use ordinary care for his own safety, and choose the safest course in performing his work or in changing his position from one place to another whenever such safe course was open, plain, and obvious. Therefore, if you find from the evidence that at the time of the accident there was a reasonably safe way by which he might have come out from under the engine, if it was necessary for him to come out at that time, and that under these conditions he chose a way manifestly and obviously unsafe and by this means lost his life, the plaintiff cannot recover, and your verdict must be for the defendant, 'No cause of action."" The court refused the request, and gave the following: "(14) It is the duty of one who enters the employ of another to use reasonable and ordinary care to avoid injury to himself, and in every case the care which he is bound to exercise is in proportion to the dangers which obviously surround; and, if you believe from the preponderance of the evidence that the deceased failed to use such ordinary care, and such failure proximately contributed to the happening of an injury to him, the defendant is not liable in damages resulting therefrom. "(15) If you find from the evidence that plaintiff's intestate just before the accident which resulted in his death was working in the pit under the defendant's engine, and that the place was reasonably safe in which to perform his work, and if you further find that the engine moved a distance of four or five feet and stopped, and after this move of the engine, and before the second move, he, without warning or notice to those operating the engine, crawled out upon one of the rails of the track between two of the drivers of the engine, and that said place was obviously dangerous under the circumstances, and that in this position he lost his life by being run over by the engine, I charge you as a matter of law the plaintiff cannot recover, and your verdict must be for the defendant, 'No cause of action.' "(16) If you find from the evidence that just before the accident the plaintiff's intestate was in a comparatively safe place, and that there was no emergency existing requiring him to leave said place, and if you find that an ordinarily prudent man in his position would have had reason to believe that the engine might move upon the track in one direction or the other, and under these conditions he tried to crawl out between the drivers of the engine, and in doing so placed his body across one of the rails of the track, and thus lost his life because of a movement of the engine, the plaintiff cannot recover, and your verdict must be for the defendant, 'No cause of action." " We think the Before the ap No complaint is made of the charge as given. Complaint is made because the request was refused. ruling not erroneous for several reasons. pellant is in a position to impute error to the trial court in refusing its request, it must be made to appear that the request was good not as a part but as a whole. The first sentence of the request is too broad. It is not the law that a servant is in duty bound "to choose the safest course in performing his work.” That is to say, there may be two natural and usual ways of performing the work, each of which is reasonably safe, and neither dangerous, yet one may be safer than the other. In such case it cannot be said as matter of law that the servant is guilty of negli gence because he did not choose the safer one. The first sentence of the request stated abstractly is in direct conflict with the second, wherein the principle is sought to be correctly applied that, where there is a natural and reasonably safe method of performing the work, the servant who voluntarily or carelessly pursues a method which is obviously dangerous or known to him to be so is guilty of contributory negligence. The request was, therefore, properly refused, though other portions of it may not be objectionable. The last sentence of the request more nearly stated the law, and might properly have been given had not the conduct of the deceased with respect to an emergency, or an unexpected and sudden peril, been involved. This portion of the request was, however, also properly refused because it singled out an isolated fact by excluding all others bearing upon the question, and, without asking a rule of law with respect to it, asked a directed verdict in favor of the defendant. Had this request been given, the jury would have been directed to render a verdict for the defendant if they found that the deceased did not choose the safest way in going out from under the engine, regardless of the elements of sudden peril or of an emergency. Counsel for appellant say that they were entitled to have the law given to the jury which was applicable to their theory of the case. That is true. But they were not entitled to have a verdict directed in favor of the defendant upon a single fact, if found in its favor, unless such fact was decisive of the whole case. The observations made by Mr. Justice Frick in the case of Herndon v. Salt Lake City, 34 Utah 65, 95 Pac. 646, concerning such matter, are also here very pertinent. To successfully defend the request, the appellant is obliged to accept one of the following propositions: First, that it is the law, where a servant is placed in a perilous situation, created by the negligence of his master, and is confronted with an emergency, and attempts to escape, he, at his peril, is bound to choose the safest course or method of escape; or, second, that the elements of an emergency and the excitation of the deceased were not involved in the case. The first position is not tenable because it is against law; the second, because it is against the record, for there is evidence from which the jury were authorized in finding the existence of the elements referred to. And, lastly, the principle of law upon the theory contended for by appellant was sufficiently stated to the jury in paragraphs 15 and 16 of the court's charge. The court concretely applied to the facts of the case the principle of law which the appellant attempted to state abstractly in its request. We think the case was properly and fairly submitted to the jury, and the rights of the appellant fully protected in the charge. The judgment is therefore affirmed, with costs. MCCARTY, C. J., and FRICK, J., concur. DAVIDSON v. UTAH INDEPENDENT No. 1899. Decided August 2, 1908 (97 Pac. 124). 1. TELEGRAPHS AND TELEPHONES-MAINTENANCE OF TELEPHONE LINES IN STREET-INJURIES ΤΟ TRAVELER-EVIDENCE-INSTRUCTIONS"STREET." Where, in an action against a telephone company for injuries to a driver on a street by coming in contact with an unprotected guy wire, the evidence showed that the wire was on what would have been the sidewalk, had a sidewalk been constructed, and that the entire street from lot line to lot line was open for travel, an instruction based on the theory that there was evidence justifying a finding that the wire was on a public street was not erroneous, since the word "street," as commonly understood, means a highway used by the public for travel, either by means of vehicles or on foot, and embraces all the area between the lots on either side. 2. MUNICIPAL CORPORATIONS-STREETS-USE AS HIGHWAY-ROADWAY. Where the full width of a street is open for travel, and there are no excavations, embankments, or visible objects to indicate that a portion thereof has been set apart or used as a sidewalk, a traveler thereon may use any part of it as may suit his convenience, and he is entitled to protection against the unlawful acts of others; but, where only a portion of the highway has been improved for travel, the traveler must remain within the traveled portion.1 3. TELEGRAPHS AND TELEPHONES-MAINTENANCE OF TELEPHONE LINES IN STREET-INJURIES TO TRAVELER-INSTRUCTIONS. Where in an action against a telephone company for injuries to a traveler on a street by coming in contact with an unguarded guy wire, the evidence showed that the wire had always remained unprotected, that there was nothing in the vicinity 1 Herndon v. Salt Lake City, 34 Utah 65, 95 Pac. 646. |