Brown v. Union Pac. R. Co.

• Decision Date: 21 August 1930
• Docket Number: 4826
• Citation: 290 P. 759,76 Utah 475
• Court: Utah Supreme Court
• Parties: BROWN v. UNION PAC. R. CO

290 P. 759

76 Utah 475

BROWN v. UNION PAC. R. CO

No. 4826

Supreme Court of Utah

August 21, 1930

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by Harry C. Brown against the Union Pacific Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

AFFIRMED.

Geo. H Smith, J. V. Lyle, R. B. Porter, and W. Hal. Farr, all of Salt Lake City, for appellant.

Willard Hanson, A. H. Hougaard, and E. D. Sorenson, all of Salt Lake City, for respondent.

EPHRAIM HANSON, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

This is an action to recover damages for injuries suffered by respondent by being struck by one of the cars of appellant. The verdict was for the plaintiff, and defendant appeals.

The appellant has assigned fifteen errors, but has argued only four of them. Under the rule established, the assignments of error not argued are deemed waived, and will not be considered.

The first two assignments relate to the refusal of the trial court to grant a directed verdict; the third relates to the refusal of the court to give a requested instruction; and the fourth relates to the refusal of the court to grant a new trial.

By the first two assignment of error the appellant urges that the court should have granted a directed verdict, because (a) the plaintiff failed to prove the defendant guilty of any negligence; (b) the evidence shows that the plaintiff could have seen the approaching cars and engine if he had looked and listened, and his failure to look and listen constitutes negligence barring recovery; and finally (c) the evidence shows an executed release for a valuable consideration, and the evidence of fraud to justify setting the release aside is absent.

The record discloses that the respondent was employed in Denver to work for the appellant company in Western Wyoming; that he was furnished with transportation at Denver, became a passenger of the railroad company, and was carried to Green River, Wyo., where the cars carrying respondent and other laborers were stopped for the night. In order to obtain breakfast it was necessary for respondent and other laborers to cross several tracks in the railroad yards; the restaurant being in the west end of the depot.

The respondent testified that, as he left his car, he stopped and looked to see if a train was approaching and saw none, though he saw a baggage car up the track. This baggage car was shoved or shunted down the track towards respondent; it struck him, and he was seriously injured. The evidence of appellant's witness King shows that the baggage car with others was being pushed by an engine, and there was no one on the front end to give signals as to watch out for what was ahead. There is no pretense that any warnings were given of the impending movement of the baggage car. The negligence of appellant clearly appears.

Counsel for appellant vigorously argue that the rule relating to the duty of a person about to cross a railroad track to look and listen and to heed what might be heard or seen, as announced in Teakle v. San Pedro, etc., 32 Utah 276, 90 P. 402, 10 L.R.A. (N.S.) 486, governs this case. In addition to that case, they rely upon the following: Lawrence v. Denver & Rio Grande Railroad Co., 52 Utah 414, 174 P. 817; Rattie v. Minneapolis, St. Paul & S. S. Marie Ry. Co., 55 N.D. 686, 215 N.W. 158; Morser v. Southern Pacific Co., 124 Ore. 384, 262 P. 252; and Lake Erie & W. R. Co. v. Stick, 143 Ind. 449, 41 N.E. 365.

All these cases involve the duties of pedestrians or persons driving an automobile who approach and attempt to cross a railroad track. The duties of such persons to look and listen, and to heed oncoming trains in full view, are well stated in those cases.

But this case involves the duty of a passenger who is so placed by a railroad company that it is necessary for him to cross tracks in order to get to a restaurant. The authorities are quite clear that the measure of care and attention by such a person is not so great as that imposed upon a pedestrian, who is not a passenger, who attempts to cross the railroad tracks. The rule is well stated in 10 C. J. at page 929, § 1351, that, as to passengers, "the strict rule as to looking and listening which is in general applicable to persons crossing the tracks of railroad companies does not apply, the passenger having a right to suppose that the place where he is allowed to get on board, or alight from, a train or car is a safe place, and that all trains will comply with the law by giving warning, displaying lights," etc.

And again the rule is stated in 10 C. J. at page 1112 in the following language:

"But a passenger who is in the act of going to or leaving the train at a place where there is an express or implied invitation for him to do so, as where it is necessary for him to cross the tracks, may assume that the railroad company will so operate its other trains, or otherwise perform its duty, as not to put him in peril, and he is not under the same obligation to look out for his own safety by looking and listening as is incumbent in general on a person who approaches a railroad track with intent to cross it; and accordingly it has been held that it is not contributory negligence per se for a passenger in passing from the depot to the train, or vice versa, to attempt to cross an intermediate track without first looking and listening for the purpose of ascertaining whether a train is approaching or not, but the question is ordinarily one for the jury to decide under all the facts and circumstances of the case."

This text is amply sustained by the cases cited in the notes. The cases cited and relied upon by the appellant, therefore, have no application to the facts of this case.

Respondent relies upon the cases cited in Corpus Juris, many of which we have examined. We are content to quote from and refer to but one of these numerous cases. In Warner v. Baltimore & Ohio Railroad Co., 168 U.S. 339, 18 S.Ct. 68, 70, 42 L.Ed. 491, Mr. Justice White says:

"The duty owing by a railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross and the trespasser who ventures upon the tracks of a railroad company are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must be determined on due consideration of the obligations of both the company and the passenger."

The contention of the respondent is well sustained by the cases, and, as the negligence of appellant clearly appears in the record, and the jury decided there was no contributory negligence on the part of respondent, appellant's contention must fail.

The contention of appellant that the evidence shows an executed release for a valuable consideration and that the evidence of fraud which would justify setting the release aside is absent presents a more serious question.

It appears that respondent, on December 8, 1928, signed a release of all claims growing out of the accident on account of which this action was brought. The release was a printed form of the appellant company, filled in with typewriting, and in form is a receipt for $ 875, in consideration of the payment of which sum the respondent releases the appellant from all claims or causes of action for damages growing out of an accident occurring on or about August 26, 1928, at or near Green River, Wyo., being the accident mentioned in the complaint.

The respondent admits he signed said release, and admits that he received the sum of $ 331. The balance of $ 534 was used to pay the hospital expenses and the doctor's bill run by respondent while he was in the hospital.

In answer the appellant pleaded this release as a complete defense to the plaintiff's alleged cause of action; and the respondent, in the reply, alleged that the release had been obtained by means of fraud, and particularly in that the agents of appellant represented to him that they would pay him the sum of $ 331 to cover the loss of wages while he was in the hospital, and that it would be necessary for them to have a receipt to turn in to the defendant company, and that they pretended that the paper they presented to him was only such a receipt. He alleges that he was suffering great physical pain and mental suffering, that the room where the transaction took place was dark and had but little light, and that, by reason of his not having glasses, he was unable to read the paper; that he relied upon their statements that it was only a receipt for wages; that it was not read to him and he could not read it, etc.

The testimony of the respondent tends to prove these allegations. On the part of appellant there was evidence which tended to prove that Mr. Patsch, an adjuster for the railroad company visited the respondent in the hospital at least ten times from September 2 to December 8, 1928; that on the occasion of some of these visits offers were made to settle any claim respondent might have against appellant, at first $ 500, then $ 600, and finally $ 875, the latter figure to cover the hospital and doctor's bills and leave $ 331 for respondent; that on December 8, Mr....