Bates v. San Pedro, L.A. & S.L.R. Co.

• Decision Date: 10 March 1911
• Docket Number: 2124
• Parties: BATES v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY
• Court: Utah Supreme Court

114 P. 527

38 Utah 568

BATES v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY

No. 2124

Supreme Court of Utah

March 10, 1911

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Ormus Bates against the San Pedro, Salt Lake & Los Angeles Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED, and a new trial ordered.

Pennel Cherrington for appellant.

W. H King and W. S. Marks for respondent.

FRICK C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

Respondent recovered judgment for damages against appellant in an action for negligence. The alleged damages were caused in a collision of respondent's team while hitched to a wagon with one of appellant's fast passenger trains at a public country crossing in Tooele County, Utah. The only question presented for review on this appeal is an alleged error committed by the trial court in refusing to charge the jury as requested by appellant that respondent in attempting to cross the track at the time in question was guilty of negligence which caused or directly contributed to the injuries and damages complained of, and for that reason the jury should find in favor of the appellant.

Respondent's negligence, appellant's counsel contends, is established by uncontroverted evidence, and hence should be declared as a matter of law. The evidence upon the question of negligence most favorable to respondent is substantially as follows: On the 28th day of January, 1908, a short time before noon respondent was driving his team, hitched to a farm wagon, on a public highway in Tooele County. The highway in question, before crossing the railroad track, runs parallel with the track for about a quarter of a mile, and then turns at a right angle across the track. Easterly from the point where the highway turns and continues parallel with the track both the highway and the track run in a southwesterly and northeasterly direction, and the track is laid in a cut about ten feet in depth, which extends about one hundred rods southwesterly from the crossing, and also for perhaps more than that distance northeasterly therefrom. The depth of this cut is considerably increased at places by the waste matter taken from the cut and thrown out on the embankment. In traveling on the highway in its course parallel with the track there are places where, if one looked, a train coming from the west could be seen. On the morning in question respondent says it was "smoky and foggy," and at the point where he turned to follow the highway parallel with the track he could see the country to the southwest along the track for "about half a mile." He further says, "I wasn't specially looking for a train," but that he neither saw nor heard one. While traveling northeasterly parallel with the track, he says he did not look for a train. When he arrived at the point where he was about to turn to cross the track, he says: "I drew up my horses as I made that turn. I was on a sort of a jog trot coming along the parallel highway, and, as I made the turn, naturally drew up my horses and slowed down and listened. There was no sound I could hear--no sound of a train." The point at which he "slowed up," he says, was about fifty feet from the track, and that while driving toward the crossing he glanced to the west, and then looked "northeasterly down the track." He further says that he continued to look in a northeasterly direction for a train until "my team was just about to the track." Then he looked southwest again, and then saw the train which struck his team and wagon. At this moment, he says: "My team was on the track." Seeing the train so close upon him startled him, and he does not remember of doing anything more. His team and wagon were struck and damaged, and he received some personal injuries. On cross-examination he, in substance, said that he was quite familiar with the crossing in question; that he crossed it about once a week; that he knew that the train which struck his team was a fast passenger train, but did not know the time it would pass that point. In driving easterly parallel with the track, he did not look back for a train. Did not stop his team at any point to listen for the approach of a train, but slowed down to a walk. Did not stop to listen for a train from the west, because "I din't think it necessary." Knew a train could not be seen more than one hundred and fifty feet west of the crossing from a given point, and knew that a train might come along at any time. Could not see a train coming from the east, either, until it had reached a point one hundred and fifty feet east from the crossing. Did not stop to look for a train from the west, because "I was curious to see a train from the other way." Had no curiosity about a train which might come from the west. Expected a train from the east about that time, but did not expect one from the west. "Q. And, after you left the corner of the fence fifty feet from the track, you did not look again until your team was right on the track; then you turned around and the engine was on you; that's correct, is it? A. Yes." He knew that the train from the west came downgrade before reaching the crossing. "Q. . . . Did you testify on direct examination that the first time you looked to the west was just at the turn of the highway around the right of way fence and about fifty feet from the track? A. Yes, sir. Q. Did you say that from that time on for a distance of ten or twelve feet you kept your eyes to the west? A. Yes." Respondent also made a statement with respect to the accident two days after it occurred, which he signed, and in which, among other things, he said: "Between the road and...