Bitner v. Utah Central Railway Co.

• Decision Date: 16 July 1886
• Citation: 11 P. 620,4 Utah 502
• Court: Utah Supreme Court
• Parties: B. B. BITNER, RESPONDENT, v. UTAH CENTRAL RAILWAY COMPANY, APPELLANT

11 P. 620

4 Utah 502

B. B. BITNER, RESPONDENT, v. UTAH CENTRAL RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

July 16, 1886

APPEAL from a judgment of the third district court and from an order refusing a new trial. The opinion states the facts.

Judgment affirmed, with costs.

Messrs Williams & Young, for appellant.

Messrs Sheeks & Rawlins, for respondent.

BOREMAN J. ZANE, C. J., concurred. POWERS, J., concurred in the result.

OPINION

BOREMAN, J.:

The plaintiff below (respondent here) was, in his wagon, drawn by two horses, crossing the railroad track of defendant, when a passing freight train of defendant struck the wagon, and injured him, and he brought this action to recover damages for such injuries, alleged to have been caused by the negligence of the defendant. The cause was tried with a jury, which gave a verdict in favor of plaintiff for $ 5,000 damages, and judgment was rendered accordingly. A motion for a new trial having been made and overruled, the defendant has brought the case, by appeal, to this court.

The appellant denies negligence on its part, and alleges that it was error for the jury and court to find that it was negligent. The statute requires that the locomotive bell "be rung at a distance of at least one hundred rods from the place where the railroad shall cross any street, road, or highway, and be kept ringing until it shall have crossed." No witness testifies that the bell was rung for half that distance, and some witnesses testify that it was not rung at all, until the train had almost reached the crossing, and while in a long, deep cut. The statute (Comp. Laws Utah, 214, sec. 494) provides, further, that "sounding the locomotive whistle, at least one-fourth of a mile before reaching any highway crossing, shall be equivalent to ringing the bell." No witness testified that the whistle was sounded at any time until the train was almost immediately at the crossing, and such sounding the whistle was not to give warning to persons crossing the track, but to notify the brakeman to "down brakes," as a collision was imminent. The railroad track was laid through a long and deep cut, some 12 feet deep, the height of which had been increased by earth thrown from the cut. This cut was the work of the appellant, and the increasing of the height was its work. The embankment thus made was a great obstruction to the view; so great, according to some of the witnesses, as to entirely obstruct the view for a distance.

Had this embankment been cut down, instead of being increased in height, there would have been a long stretch where a coming train could easily have been seen by a person anywhere near where respondent was before he began the descent to the railroad track. Had the whistle been sounded, or the bell rung, according to the requirement of the statute, it is probable that the attention of the respondent would have been attracted to it while he was driving around on the west side of the track, for he says that he was on the lookout. Had the appellant done its duty in either of the respects we have stated, it seems evident that this accident would not have occurred, or, if it had occurred, the responsibility for it would have been removed from the appellant. The allowance of the train to run under such...