Boyd v. San Pedro, L.A. & S.L.R. Co.
| Decision Date | 22 January 1915 |
| Docket Number | 2658 |
| Citation | 45 Utah 449,146 P. 282 |
| Parties | BOYD v. SAN PEDRO, L. A. & S. L. R. CO |
| Court | Utah Supreme Court |
Appeal from District Court, Third District; Hon. C. W. Morse, Judge.
Action by Nettie V Boyd against the San Pedro, Los Angeles & Salt Lake Railroad Company.
Judgment for plaintiff. Defendant appeals.
AFFIRMED.
Dana T Smith for appellant.
T Marioneaux, B. N. C. Stott, and Powers & Riter, for respondent.
The plaintiff's husband was in the employ of the defendant as a track walker. His duties were to inspect the track, report defects, and to flag trains. It is alleged that he was run over and killed near Mammoth by the defendant's train. The plaintiff had judgment. The defendant appeals.
The alleged errors are refusals to grant a nonsuit, to direct a verdict, and to charge as requested. The plaintiff adduced evidence to show that the defendant was operating a train consisting of an engine, a combination baggage and express car, and a passenger coach from Eureka to Silver City, Utah. Near Mammoth the deceased flagged the train. It stopped. He, on the engineer's side, approached the conductor, who had come out on the front steps of the passenger coach, and told him that there was a broken rail ahead. The conductor inquired if it was very bad. The deceased replied that the conductor had better go and examine it. The conductor replied that he would as soon as he got his coat, and re-entered the car for that purpose. While he was getting his coat the train started, without ringing the engine bell or sounding the whistle or giving any warnings or signals, or, as far as observed, without the conductor indicating or doing anything to cause it to start. It ran three or four car lengths and then stopped. The conductor, leaving it going forward, and on reaching the engine, exclaimed: "My God, we have killed the old section foreman" (plaintiff's husband). The deceased's body was found dragged and crushed under the engine. There was much snow on the ground. Along the sides of the track where the ground was lower than the track it was nearly knee deep. Marks in the snow in the middle of the track indicated the distance the body had been dragged under the engine. The deceased's cap and gloves were found in the middle of the track where the dragging began. Two of the defendant's rules were put in evidence; one, "The engine bell must be rung when the engine is about to move"; the other, "A train must not start until the proper signal is given by its conductor." The alleged negligence is a failure to ring the bell or sound the whistle or give warnings or signals before the train was started, or to observe the presence of the deceased.
The grounds of nonsuit are want of evidence (1) to show "a prima facie case"; (2) to show "that the alleged negligence was the proximate or direct cause of the death"; and (3) to show a duty to ring the bell or sound the whistle or to give warnings before starting the train. On the overruling of the motion the defendant adduced its evidence. It shows that, when the train was flagged and stopped, the deceased first approached the engineer and told him there was a broken rail down by the bridge or curve. That was about 400 feet away. He then approached the conductor on the steps of the passenger coach and reported the broken rail to him and stated he thought the train could pass over it, but that the conductor had better go and examine it. The conductor replied that he would as soon as he got his coat and shoes, asked the deceased to get on the passenger coach, and stated that they would "drop down a few car lengths." The deceased replied that he would walk. The conductor hallooed to the engineer to "drop down a few car lengths." and gave him a signal to start, and then re-entered the car to get his coat and shoes. Before that the deceased had turned back towards the engine. It was still standing. He told the engineer, "I think if you will move down slowly you can get over the broken rail." Shortly thereafter--some of the defendant's witnesses testified about a minute and a half after the signal to start was given--the train was started. The engineer and the fireman testified that the bell was rung. They did not testify that the whistle was blown. The grade was down grade. To start the train required merely a release of the brakes. It started and moved without much, if any, noise. Just before it was started the engineer looked to the side of the engine where he last saw the deceased, and also ahead, but saw nothing of him. It was testified to that if the deceased then was on the track, and within forty or fifty feet ahead of the engine, the engineer could not see him. In that connection the engineer testified in response to questions asked him:
The conductor testified that, when he gave the signal to start, the deceased was on his way back between the passenger coach and the engine. He further testified that under the defendant's rules, "when a signal is given by the conductor to proceed, the engineer shall sound two blasts of the whistle, unless there is another method of answering the conductor's signal provided for by the rules, and that no other method for the engineer to answer the conductor's proceed signal was provided, except two short blasts of the whistle." None were given. The train, when it started, moved slowly, at a speed less than one ordinarily walks. It ran about 200 feet when the engineer noticed peculiar movements of the snow under the engine, as though the brakebeam had fallen. Leaning out of his cab he discovered the deceased's foot projecting from under the engine. The train was stopped at once. The conductor left it and, going forward, found the body of the deceased dragged and crushed under the engine.
The grounds of the motion to direct a verdict are that the deceased was guilty of contributory negligence and assumed the risk "of being run over by the train."
Upon the stated grounds, that motion was properly overruled. Under all the circumstances, the question of contributory negligence was for the jury and not the court.
Upon the evidence there is nothing to the claim of assumption of risk even as to require a submission of such a question to the jury. There is nothing to support it, except a confusion of terms, assumption of risk with contributory negligence.
The chief complaint, however, made by the defendant, is that it was entitled to prevail on its motion for a nonsuit. There is nothing to the first stated ground. It is too general. Nor to the third. The law itself imposed a duty to use ordinary care, and whether, in the exercise of it, warnings ought to have been given by ringing the bell or sounding the whistle before starting the train was for the jury and not the court. The second ground is more serious, sufficiency of the evidence, when the plaintiff rested, and when the motion was interposed, to show that the alleged negligence was the proximate cause of the injury and death. Let it be assumed that that evidence was not sufficient. How stands the case when all the evidence was in? If, upon the whole of the evidence, sufficient facts were shown to justify a finding that the defendant's alleged negligence was the direct and proximate cause, then was the plaintiff, as to that issue, entitled to go to the jury, though her evidence alone was not sufficient?
True in determining whether error was committed or not in overruling the motion for a nonsuit, we are required to consider only that evidence and the...
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