Bergman v. Denver & R.G.R. Co.

• Decision Date: 06 January 1919
• Docket Number: 3103
• Citation: 53 Utah 213,178 P. 68
• Parties: BERGMAN v. DENVER & R. G. R. CO
• Court: Utah Supreme Court

178 P. 68

53 Utah 213

BERGMAN v. DENVER & R. G. R. CO

No. 3103

Supreme Court of Utah

January 6, 1919

Appeal from the District Court of Salt Lake County, Third District Hon. M. L. Ritchie, Judge.

Action by Joe Bergman, by his guardian ad litem, Henry Bergman against the Denver & Rio Grande Railroad Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

Marioneaux Straup, Stott & Beck for appellant.

Van Cott, Allison & Riter for respondent.

THURMAN, J. FRICK, C. J., and CORFMAN and GIDEON, JJ., concur. McCARTY, J., died after the submission of this cause and before the filing of the opinion.

OPINION

THURMAN, J.

This is an action for personal injuries sustained by plaintiff while trying to ride underneath one of defendant's railroad cars at Helper station, Utah. It is alleged by plaintiff, in substance, that he boarded said car for the purpose of riding thereon to Salt Lake City at a time when the train to which the car was attached was standing still; that he secured a safe place in which to ride before the train was set in motion; that after the train started to move, and had attained a rate of speed at which it was dangerous for him to attempt to get off, one of defendant's employees, in the discharge of his duty as such, carelessly, negligently, recklessly, wantonly, and willfully ordered him to get off said train; that said order was made in a boisterous and threatening manner; that said employee then and there threatened to use personal violence upon plaintiff, and throw him off of said car, unless he jumped off as he had been commanded to do; that believing he was in danger of being forcibly thrown from said car, and hearing a pistol shot about the same time, he became afraid of said employee, and attempted to obey said order, and in doing so was thrown under the wheels of the car and run over, thereby inflicting upon him the injuries for which he seeks damages.

Defendant, answering, denied these allegations, and further alleged that plaintiff surreptitiously crawled under said car while the train was moving; that he attempted to climb upon the rods or beams underneath the car for the purpose of stealing a ride; that while so riding and trespassing upon said car in some manner unknown to defendant plaintiff slipped and fell to the ground, where he was run over and injured. Defendant also alleged that plaintiff was guilty of contributory negligence.

The jury to whom the case was tried found for the defendant, no cause of action. From the judgment entered thereon plaintiff prosecutes this appeal. Certain instructions given by the court and evidence admitted over plaintiff's objection are assigned as error.

It is not disputed that at the time of the injury plaintiff was a trespasser and was trying to steal a ride on defendant's train. Neither is it contended that defendant company owed plaintiff any duty except to use reasonable care to avoid injuring him after it discovered his peril. The evidence, although conflicting as to some of the material facts, is, nevertheless, as far as material here, limited entirely to what was said and done within a few brief moments of time.

The plaintiff had beat his way on defendant's train from some point east, and on the morning of the 25th of March, 1915, found himself at the Helper station waiting for an opportunity to board a west-bound train. The opportunity came. A west-bound passenger train of nine or ten cars arrived and remained at the station about ten minutes. The plaintiff, to avoid being seen, had moved from the depot side of the track to the opposite side, and just about the time the train commenced to move he crawled under one of the cars, and had either secured, or was attempting to secure, a position where he could ride when the injury occurred. As to whether the train had commenced to move before he crawled under the car or whether it was standing still the evidence is conflicting. The evidence is also conflicting as to whether or not he had been able to secure a position where he could ride with comparative safety before the injury occurred. In brief, at the close of the testimony the plaintiff had introduced evidence tending to show that he went under the car and secured a position where he could ride with safety before the train started to move; that, after it had attained a rate of speed at which it was dangerous to get off, he was peremptorily and threateningly ordered by a brakeman to get off the car; that plaintiff, believing he was in danger of personal violence, attempted to get off, and in doing so was caught under the wheels of the car.

On the other hand, the testimony of defendant's witnesses tends to show that the train was moving when plaintiff went under the car; that he was ordered by the traveling engineer, who happened to be present, to stay out from under the car; that the plaintiff had not secured a position where he could ride with safety; that there was no position under that particular car where a person could ride with safety unless he had ample time to place himself in such position while the car was standing still.

The principal errors complained of relate to instructions given to the jury. The instructions given by the court which are in any manner material to the issues involved are as follows:

"(11) The defendant was under no duty to station men along the track to prevent the plaintiff and his companions from boarding the train, and I instruct you that you cannot render a verdict against the defendant because defendant failed to have guards at the train to prevent the plaintiff and other persons from attempting to go beneath the cars.

"(12) All persons who board the railroad company's trains without authority are merely trespassers, to whom the company owes no duty until their presence is actually discovered, and then only to abstain from willfully or wantonly inflicting injuries on them, or to use ordinary care to avoid injuring them if it actually discovers them in a position of peril. A railroad company is not under any duty to discover the presence of such persons on its trains. No obligation exists on the part of the members of the train crew to be on a lookout for such trespassers. When the trainmen actually acquire knowledge of the presence of such trespassers on the trains their only duty is to abstain from wantonly and willfully inflicting injuries on them, or, if they actually see them in a position of peril, to use ordinary care to avoid injuring them."

"(15) It is not every employee whose knowledge is imputable to the railway company. The mere fact that some employee may have stood beside the train and seen the plaintiff go beneath the car does not necessarily mean that the defendant knew of his presence there. It is only those employees who in the scope of their employment in the movement and management of this particular train knew of the plaintiff's presence under the same whose knowledge can be said to be the railway company's knowledge. I therefore instruct you that you cannot charge the railroad company with knowing what some employee may have known as to the plaintiff's presence under the train, if such employee had nothing to do with the management or movement of this particular train.

"(16) If you should find that some of the defendant's employees did the things charged in the complaint, this does not necessarily mean that the defendant is liable. Before you can charge the defendant with responsibility you must find that the employee, if guilty of the things charged in the complaint, did such things in the scope of his employment under authority conferred on him by the railroad company to expel trespassers from the train; and in this connection I instruct you that there is no evidence which would warrant you in finding that any employee outside of the crew of this particular train had authority to expel trespassers.

"(17) The defendant is not charged with omitting to do anything to avoid harm to the plaintiff, but with doing things which defendant ought not to have done, viz. by threats and intimidations forcing him to leave the train while going at a dangerous rate of speed and firing a pistol shot; and in this connection I instruct you that, if you find that the defendant is not guilty of the things charged, you have no right to return a verdict against it on the theory that it was at fault in not stopping the train the moment some employee standing beside the train saw the plaintiff start to go under it.

"(18) If you should find that the plaintiff was ordered by some proper employee of defendant's to leave the train as he was in the act of getting under it, and before he had succeeded in gaining a position of safety, and that in endeavoring to make his exit pursuant to such command he was run over and injured, without any pistol shot being fired and without any threats of personal violence being made which would cause him to lose his self-control, then I instruct you that he cannot recover; for the defendant had the right, under such circumstances, to command him not to carry out his intended trespass, and the law will not impute to a command given under such circumstances wantonness or willful intention to inflict injury on defendant's part. Such a warning amounts to no more than what the law itself commands. While the defendant had no right to injure him wantonly or willfully in evicting him from the train, it did have the right to tell him to desist in his efforts if he was then attempting to secure a position to ride under the train, and if, in attempting to make his exit pursuant to such warning, he was run over, his own negligence in attempting to steal a ride will bar any recovery.

"(19) The fact that the train was not equipped in such a manner that the rear engine...