Brown v. Southern Pac. Co.
| Decision Date | 14 December 1906 |
| Docket Number | 1729 |
| Citation | 31 Utah 318,88 P. 7 |
| Court | Utah Supreme Court |
| Parties | BROWN v. SOUTHERN PAC. CO. et al |
APPEAL from District Court, Weber County; J. A. Howell, Judge.
Action by William Brown against the Southern Pacific Company and others. From a judgment for plaintiff, defendants appeal.
AFFIRMED.
P. L Williams and C. S. Varian for appellants.
APPELLANTS' POINTS.
To apply the general rule, as affecting the liability, joint and several, of tortfeasors because of their union in act, there must be some community in the wrong doing; the injury must be in some sense the result of joint work. It is not enough that the plaintiff has, on certain grounds, a cause of action against one, and on entirely different grounds, a cause of action for the same physical tort against another. The plaintiff may have a cause of action against each other, but it does not follow that he can sue and recover against both jointly. (Blaisdel v. Stephens, 14 Nev. 17; Pomeroy's Remedies and Remedial Rights, 307, 308, 309; Butler v. Ashworth, 110 Col. 614, 43 P. 386; Trowbridge v. Forepaugh, 14 Minn. 133; Long v Swindle, 77 N.C.; Miller v. Highland Ditch Co., 87 Cal 430.)
A. G. Horn for respondent.
RESPONDENT'S POINTS.
The depot company owned and controlled the crossing in question and if it permitted others to use this crossing it is just as liable as if it had actually committed the injury. It owed a duty to the traveling public to see that its tracks were so used as to avoid injury to anyone and in failing to do so it became liable. The railroad companies who were operating the train owed the same duty. All defendants therefore committed a breach of duty to the plaintiff which resulted in his injury and in such case the rule is absolute that they are joint tortfeasors and that any or all may be sued and a recovery had against all.
Plaintiff brought this action against the defendants jointly to recover damages for personal injuries suffered through an accident at a railroad crossing alleged to have resulted because of the joint negligence of the defendants. The paragraph of the complaint charging negligence is as follows: "That on the 7th day of December, 1905, at said Ogden city, Utah and whilst the said plaintiff was crossing the railroad track controlled by the defendants upon a public street, highway, and thoroughfare, at a point where there was and is frequent and much travel, and in a populous part of said city, and by reason of the carelessness and negligence of the defendants in operating, managing, running, and switching their engines and cars over, across, and upon said street, highway, and thoroughfare, and by reason of their negligence in failing to adopt or use any precaution to prevent injuries thereon and in failing to have stationed any flagman or other person, or any guard or gates to give warning or protection from injuries to the traveling public or to persons having occasion to travel along said public street and over and across said railroad track, and by failing to sound the whistle or ring the bell as required by law, all of which was then and there necessary to prevent injury to persons crossing the highway aforesaid, and without giving any notice or warning whatever, and by reason of the carelessness and inefficiency in the management, handling, running, and switching of the trains, cars, and engines, and whilst the plaintiff was traveling and passing over the said railroad tracks of the defendants on the road crossing aforesaid, the defendants carelessly ran and backed its cars and engines upon and over the plaintiff and the vehicle in which he was then and there riding," thereby injuring him to his damage, etc. Each defendant filed its separate answer and admitted: "(1) It is and was at the times mentioned in said complaint . . . engaged in the business of maintaining and operating a railroad, together with tracks, engines and cars in the city of Ogden and elsewhere; . . . "and (2) alleged that "at the time and place of the accident referred to in said complaint . . . [it] was not operating, managing, running or switching any of its engines or cars across or upon the said street or thoroughfare as alleged in said complaint, or at all." A trial by jury was had, and at the close of plaintiff's case the defendants, other than the Oregon Short Line, severally moved for a judgment of nonsuit, on the grounds that neither company was operating or controlling the movements of the train with which plaintiff collided at the time he was injured. The motions were overruled, and the case finally submitted to the jury, who returned a verdict for plaintiff and against all of the defendants jointly for general and special damages in the sum of $ 2,500, which the court reduced to $ 2,069. Judgment on the verdict as rendered by the court was entered against all of the defendants jointly, who have severally appealed to this court.
It is conceded that "evidence was given and received on behalf of plaintiff tending to support the allegations of negligence in the matter of the operation and running of the train, made on his part." And, as stated by counsel for appellants in their brief, "the errors assigned upon this appeal are directed to the question of the joint liability of the defendants as charged in the complaint and affirmed by the verdict and judgment." The facts relating to the operation and control of the train of cars in question, as disclosed by the record, are as follows: Three of the defendants, namely the Southern Pacific, Union Pacific, and Oregon Short Line Railway Companies, jointly used the same depot at Ogden City, Utah which was provided by the other defendant, the Ogden Union Railway Depot Company. They jointly used the same baggage room and were jointly furnished other depot facilities in general. There were five tracks provided by the depot company for passenger trains, which tracks were immediately in front of the depot buildings and were used by the railway companies mentioned in connection with the other depot facilities provided by the depot company. All of these tracks intersected and crossed Twenty-fourth street, on which plaintiff was traveling at the time he received the injuries complained of. Men known as "depot police" were employed by the depot company and were paid for their services by the Union Pacific Company. The duties of the depot police were to direct passengers what trains to take and to make reports of trains coming into, and going out from this depot or station. The depot yards, railroad tracks, etc., were in charge of a yardmaster, who was employed by the Oregon Short Line Company and paid by the Union Pacific Company. The duties of the yardmaster were to designate which track or tracks the incoming trains of the different railway companies referred to should occupy and the different points at which they were to stop, and to direct the making up of passenger trains and designate points from which the outgoing trains should start. He had charge of the switching in the yards and directed what engine or engines were to be used on each particular occasion for that purpose. The flagmen were under him and subject to his orders. In fact, the evidence tends to show that he had general supervision over the depot grounds...
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