Barlow v. Salt Lake & U.R. Co.

• Decision Date: 24 December 1920
• Docket Number: 3487
• Parties: BARLOW v. SALT LAKE & U. R. CO
• Court: Utah Supreme Court

194 P. 665

57 Utah 312

BARLOW v. SALT LAKE & U. R. CO

No. 3487

Supreme Court of Utah

December 24, 1920

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by Clarissa P. Barlow against the Salt Lake & Utah Railroad Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Van Cott, Riter & Farnsworth, of Salt Lake City, for appellant.

H. A Smith & Son, of Salt Lake City, for respondent.

WEBER J. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.

OPINION

WEBER, J.

Plaintiff brought suit to recover damages due to the alleged negligence of defendant, and obtained a verdict in her favor. From the judgment on the verdict defendant appeals.

The plaintiff alleges and the answer admits that defendant is a corporation operating a line of railroad as a common carrier between Salt Lake City and Magna, Utah; that on May 14, 1918, plaintiff was a passenger from Salt Lake City to Magna; that Magna is a city of about 5,000 inhabitants; that on said day plaintiff, while alighting from one of defendant's cars at Magna, turned her ankle in stepping upon the platform provided by the railroad company, and sustained injuries.

The acts and omissions constituting negligence charged in the complaint and denied in the answer are: (a) That the means and method provided by defendant at the time and place for passengers to alight from said street cars, and particularly for plaintiff, were wholly insufficient and dangerous for that purpose, and defendant was guilty of gross and inexcusable negligence and carelessness in failing to provide a reasonably safe place and manner in which plaintiff could alight; (b) that the step from which plaintiff alighted was about 17 inches from the surface of the ground; (c) that defendant failed to maintain a platform of any character upon which plaintiff could, with reasonable safety, alight; (d) that defendant failed to furnish a stool or other means to enable plaintiff to alight from the step of the car; (e) that defendant constructed and maintained a landing below the step of the car, which consisted of coarse and loose gravel, the surface of which was soft, loose, irregular, uneven, and sloping; (f) that defendant, knowing that it was dangerous to plaintiff to alight, failed to render plaintiff any assistance by its conductor or other person; (g) that defendant failed to advise plaintiff of the dangerous condition of the landing and of the lack of proper means for her to alight, so that she might exercise greater care for her own safety. It is further alleged that when plaintiff alighted the gravel slipped from under her foot, causing her to fall to the ground, breaking her right ankle; that as a result she was confined to her bed two months, suffered mental and physical pain, and was permanently injured.

In addition to the admissions and denials above stated, the answer alleged that whatever injuries, if any, were received by plaintiff in alighting from defendant's train at said time and place were due entirely to the carelessness and negligence of plaintiff in the manner in which she stepped from the train.

Mrs. Clarissa P. Barlow, plaintiff below and respondent here, testified in effect: On May 14, 1918, she was 57 years of age, and weighed 167 pounds. At that time she was a passenger on appellant's train from Salt Lake City to Magna, Utah alighting at Magna, a town of about 5,000 population. At the time she alighted from the car she was carrying two cartons tied together, also her handbag or satchel and a bundle of personal property, carrying part of these articles in her hands and part under her arms. The car stopped at the usual place at the end of the line at Magna. When the car stopped she attempted to alight in the ordinary way. Other passengers were also alighting, some in front of her and some behind her. It was broad daylight, about 7 o'clock in the evening. She looked where she was going, and there was nothing to divert her attention. She could not see where her feet would be placed when she got down with her bundles. Her skirt would have prevented it. She did not take hold of the handrail as she ordinarily did. If she had not had her bundles, or if, having them, she had laid them aside while detraining, or had asked the conductor to help her hold them, and had then taken hold of the handrail and let herself down, she thought the accident would not have happened. She said further:

"I did not rely on the conductor to assist me. I felt confident, I guess, to get out alone. I did not rely upon him to take hold of me and let me down. I did not anticipate any danger or I wouldn't have got out. I went down too quickly for any one to help me. On the day of the accident the platform looked as it had looked on any other day on my numerous visits to Magna. The only difference was that there was not the footstool that had usually been there. I did not slip on the gravel. I stepped down, and the gravel slipped under my foot, and the ankle turned. I usually went to Magna about twice a month, and before this time a stool had been placed just below the step to assist in alighting from the train. After I was hurt I sat on a stool such as is used by railroad companies, and observed the character of the material upon which I stepped as I got down from the step of the car. I saw the loose gravel. It was a mixture of both kinds of gravel, both coarse and fine. Some was fine, and some was coarse. Some was as large as a chicken's egg and some smaller. I saw where my foot had been in the gravel. The station platform was not covered all in the same way. If you stepped out a little farther it was level to the walk ahead. I think the gravel was along close to the rail. A step farther away the gravel was packed, where it was walked on more."

The witness further testified that her ankle was kept in splints eight days, then put in a cast, where it remained for three or four weeks. She said she used crutches for three months, and after discarding them used a cane, and for from three to six weeks after she had discarded the crutches she could not trust herself to walk any considerable distance; that she is now doing her regular household duties. The swelling in the ankle was going down continuously. There is still some enlargement of the ankle.

Mrs. Frances E. Jones, who preceded Mrs. Barlow in alighting from the car at the time of the accident, first saw respondent as she was on the ground. Mrs. Jones testified that when she herself stepped down she stepped on gravel, which was in a loose condition, and slipped from under her foot. The ground underneath the car step was not level. It was inclined. Prior to this she had never noticed any loose gravel underneath the car steps.

Carolus V. Cammons testified that the gravel had been put there two or three days before the accident. He saw Mrs. Barlow when she had fallen. There was loose gravel, some large and some small pieces of gravel. It was not level. It was perfectly loose, and had not been tramped down.

Mrs. Frontjes, a daughter of plaintiff, testified that she waited upon and nursed her mother from the day of the accident until seven or eight weeks thereafter.

A physician testified to the nature of Mrs. Barlow's injuries and stated that in his opinion, on account of her age and the length of time which had elapsed, whatever disability she had at the time of trial would be more or less permanent.

Another physician testified that in his opinion plaintiff would always suffer more or less pain, and will always have a weak ankle.

When respondent rested appellant moved for a nonsuit on the following grounds:

"(1) The evidence fails to establish that the defendant was guilty of negligence with respect to any of the matters alleged and complained of by the plaintiff in her complaint herein. (2) The evidence fails to establish that any negligence on the part of the defendant was the proximate cause of the accident and injury by plaintiff complained of. (3) The evidence affirmatively, as matter of law, establishes that the plaintiff was guilty of negligence which directly and proximately contributed to the accident by her complained of."

Counsel made specifications and went fully into the details of the evidence, which they claimed established contributory negligence as a matter of law.

It has been repeatedly held by this court that a motion for nonsuit should be specific, and that a motion, stating that the evidence fails to show negligence or carelessness, is too general to be considered. Lewis v. Silver King Min. Co., 22 Utah 51, 61 P. 860; White v. R. G. W. Ry. Co., 22 Utah 138, 61 P. 568; Wild v. U. P. Co., 23 Utah 265, 63 P. 886; Boyd v. L. A. & S. L. Ry. Co., 45 Utah 449, 146 P. 282. However, both parties having treated the motion for nonsuit as sufficient, we shall therefore treat the motion as though it were sufficiently specific.

In their brief counsel for appellant say:

"The case should have been withdrawn from the jury for two reasons: (1) The uncontradicted evidence was such that reasonable minds could not infer that the defendant had failed to use ordinary care under the circumstances; (2) if it be assumed, as contended by the plaintiff and as held by the trial court, that the inference of negligence could properly be drawn, nevertheless the uncontradicted facts were such that the reasonable mind must infer that the plaintiff's acts were negligence, and that such negligence proximately contributed to the accident."

The testimony introduced by plaintiff showed: First, loose gravel underneath the step at that part of the platform on which Mrs. Barlow stepped; second, that the distance from the lower step of the car to the platform was 17 inches; third, that sh...