ner in which it was done, nor could they claim anything in excess of their dues. The facts, therefore, are hardly such as would authorize punitive damages; but they are clearly such as require appellants to pay the respondent the full value of her property. This value is not to be fixed at what others would have been willing to pay after the conversion and handling of the articles by appellants, but at what they were worth to respondent for the uses and purposes for which she had them. In other words, if what respondent testified to is true, then most of the articles, although used by her, were as good as new to her; and, if this be so, she would be compelled to pay the first cost price to replace them with others just as good, and, if this be so, she is receiving no more than enough to make good her loss. This she is entitled to, and this, in view of all the evidence, she, in our judgment, is receiving by being allowed the value as we have stated it above. The jury gave her much more, and the court's allowance also exceeded this amount. We have no doubt that, if the trial court had thoroughly sifted the evidence with regard to value, he would have reduced the verdict to an amount supported by the evidence. In reducing the amount to $1,800, he evidently aimed to do so, but failed in this, because he did not have an opportunity to compare and add up the numerous items, and limit the amount to the actual value as testified to by the respondent, after excluding conjectural values.

We feel constrained to say that, if this were merely an ordinary case of conversion, we would be inclined to reverse the judgment unconditionally upon the ground that the jury allowed excessive damages. The case is, however, unusual in many of its features, and in view of the circumstances, and the apparent impossibility of the appellants to either justify their conduct or to replace the very numerous articles converted by them, it is not likely that any jury would very much reduce the amount found by the present one. We arrive at this conclusion because the verdict of the jury does not appear to have been based upon passion or prejudice, but seems to have been induced by what they considered a wrong

inflicted by appellants upon a helpless woman. While the conduct of appellants is not to be commended, it, in view of all the circumstances, nevertheless was not such for which punitive or exemplary damages could be allowed. The jury were, therefore, powerless to allow anything in excess of the value established by the evidence. Appellants, instead of seeking redress in the courts for any grievance they may have had against respondent, took her goods and chattels and dealt with them as they saw fit. They did this at their peril, and are not now in a position to invoke nice distinctions. with regard to the measure of damages. But, even after conceding all this, the law does not require them to do more than to make full reparation for the pecuniary injury they have inflicted, where the action is one for conversion merely. Moreover, the case has been fully and fairly tried, and we believe that under the circumstances it would subserve neither the interests of justice nor of the parties to prolong the litigation. Respondent cannot complain if she is awarded the full value of her goods, and appellants should at all events be required to make good her loss in so far as this may be done under the rules of law and evidence in a case of this character. This we think they are required to do by paying the sum of $1,130.55, with legal interest thereon from the date of conversion. This amount, and no more, is supported by the evidence. In view of this, we will now do what the trial court should have done in passing on the motion for a new trial, namely, conditionally reduce the amount of the judgment to the amount that is supported by the evidence.

It is therefore ordered that the amount of the judgment be reduced from $1,800 to $1,130.55, with interest as aforesaid; that in case the respondent shall remit from the judgment the difference between the amount of the judgment as it now stands and the amount as stated above, and will file such remittitur with the clerk of this court within fifteen days after being notified of this decision, the judgment will be affirmed as modified; otherwise, it will be reversed, and a new trial ordered. In case the respondent shall not remit the amount from the judgment as above stated, but shall elect to have the

cause remanded for a new trial, she is required to pay the costs of this appeal; otherwise, neither party to recover costs. MCCARTY, C. J., and STRAUP, J., concur.

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3.

4.

5.

CONDIE v. RIO GRANDE WESTERN RY. CO.

No. 1933. Decided August 15, 1908 (97 Pac. 120).

MASTER AND SERVANT-INJURY TO SERVANT-NEGLIGENCE—QUESTION FOR JURY. Where an employee, working under a locomotive over a pit in a roundhouse, was injured by another engine being run into the locomotive, the question of negligence is for the jury; the evidence being conflicting on the questions whether warnings were given, and, if so, whether they were Sufficient and timely, under the circumstances.

TRIAL-DIRECtion of Verdict-QUESTION FOR JURY. The court in passing on defendant's request to direct a verdict is not bound to accept the statement of a witness as conclusive on the subject, because there is no direct testimony of an eyewitness to the contrary, when there are other facts and circumstances from which the jury could properly find otherwise.

MASTER AND SERVANT-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE QUESTIONS FOR JURY. Where the locomotive under which an employee was working was run into by another engine without warning, he was not guilty of contributory negligence as matter of law, even if he attempted to get out between the Wheels of the locomotive, instead of through the wider space between the engine and the tender, and while doing so the locomotive was again pushed and moved onto him.

Refusing a requested charge

TRIAL-REQUESTED INSTRUCTIONS.
is not error; part of it being bad.
MASTER AND SERVANT-INJURY TO SERVANT-CONTRIBUTORY NEG-
LIGENCE. The part of a requested charge that it is the duty
of a servant "to choose the safest course in performing his work"
is too broad, as there may be two natural and usual ways of
performing the work, each of which is reasonably safe, and
neither dangerous, but one safer than the other, in which case
the servant is not guilty of negligence as matter of law in not
choosing the safer one.

6. TRIAL-INSTRUCTIONS SINGLING OUT FACTS NOT CONCLUSIVE. A requested charge which singles out an isolated fact, not decisive of the whole case, and directs a verdict, if this fact be found, is properly refused; and hence a requested charge di

recting a verdict for a master, if the servant, in getting out from under his engine, which, while he was working under it, was struck and moved by the negligence of the master, did not choose the safest way in getting out, is properly refused, if ignoring the elements of sudden peril and emergency, of which there was evidence.1

7. SAME-REQUESTS COVERED BY INSTRUCTIONS GIVEN. It is enough that the court by its charge concretely applied to the facts the principle of law which a party attempted to state abstractly in its request to warrant a refusal of the request.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Sophie Condie, as administratrix of Joseph Condie, deceased, against the Rio Grande Western Railway Company. Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Van Cott, Allison & Reter for appellant.

J. H. Bailey and E. A. Walton for respondent.

APPELLANT'S POINTS.

"Thus, a railway employee, when about to put himself in such a position with respect to a stationary car that, if it should be moved unexpectedly he will in all probability be injured, is bound to notify all other employees whose work may, in its progress, produce a movement of the car, or to put out a flag or other signal which will show them where he is." (Norfolk & W. R. Co. v. Graham, 31 S. E. 604; Lumpkin v. So. R. Co., 24 S. E. 963; Hulien v. 'Chicago & N. W. R. Co., 82 N. W. 710; Spencer v. Ohio & M. R. Co., 29 N. E. 915; Atchison, T. & S. F. R. Co. v. Alsdorf, 56 Ill. App. 578; Whitmore v. Boston & M. R. Co., 23 N. E. 220; Nihill v. N. Y., N. H. & H. R. Co., 44 N. E. 1075.)

"Where there is a natural and safe method of performing his service, and the servant carelessly pursues a method

Herndon v Salt Lake City, 34 Utah 65, 95 Pac. 646.

that is obviously more dangerous, he is guilty of contributory negligence, and cannot recover.” (Gowen v. Harley, 56 Fed. 973; Morris v. Duluth L. S. & A. R. Co., 108 Fed. 747; English v. Chicago M. & St. P. R. Co., 24 Fed. 906; Fritz v. Electric Light Co., 18 Utah 503; Goldstein v. Railway Co., 46 Wis. 404; Jackson v. Grilly, 26 Pac. 331; Cunningham v. C. M. & St. P. Ry. Co., 17 Fed. 882; Dawson v. Railway Co., 114 Fed. 872; Russell v. Tillotson, 140 Mass. 201; Bailey's Master's Liability, 169; Estees v. U. P. R. R. Co., 16 Pac. 131; Colorado Coal & Iron Co. v. Carpita, 40 Pac. 248; Salem Bedford Stone Co. v. O'Brien, 40 N. E. 430; Walker v. Atlanta & W. P. R. Co., 30 S. E. 503; Central R. Co. v. Moseley, 38 S. E. 350.)

"A refusal to give an instruction based on and applicable to the facts in evidence which is not covered by other instructions is error." (Last Chance Mining Co. v. Ames, 47 Pac. 382; St. Louis Ry. Co. v. Boyce, 48 Pac. 949; Marsh v. Cramer, 27 Pac. 169; Buckley v. Silverberg, 45 Pac. 804.)

RESPONDENT'S POINTS.

Where the servant has reasonable grounds for believing that if he is threatened with some transitory danger he will receive timely warning of its approach, he is entitled to rely thereon and to relax his own vigilance without being deemed guilty of contributory negligence. (1 Labatt, Master and Servant, sec. 355; Pool v. Southern Pac., 20 Utah 210; Berry v. Railroad, 40 Iowa 564.)

STRAUP, J.

Joseph Condie, deceased, was in the employ of the defendant and appellant in the capacity of an engine wiper. It was alleged in the complaint that while he was under an engine in the defendant's roundhouse, and was engaged in cleaning and wiping the engine, the defendant, negligently and without warning, ran and operated another engine against, and killed him. In an action brought by his admin