Burgess v. Salt Lake City R. Co.

• Decision Date: 15 June 1898
• Docket Number: 917
• Citation: 53 P. 1013,17 Utah 406
• Court: Utah Supreme Court
• Parties: CHARLES BURGESS, RESPONDENT, v. SALT LAKE CITY RAILROAD CO., APPELLANT

53 P. 1013

17 Utah 406

CHARLES BURGESS, RESPONDENT, v. SALT LAKE CITY RAILROAD CO., APPELLANT

No. 917

Supreme Court of Utah

June 15, 1898

Appeal from district court, Salt Lake county, W. N. Dusenberry Judge.

Action by Charles Burgess against the Salt Lake City Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

E. B Chritchlow, for appellant.

James A. Williams and John W. Burton, for respondent.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff, through the negligence of the defendant company. At the trial the jury returned a verdict in favor of the plaintiff, and the defendant prosecuted this appeal.

The evidence shows substantially that the injuries of which the plaintiff complains were received on December 4, 1894; that on the afternoon of that day the plaintiff, at a point opposite the Cullen hotel, on Second South street, Salt Lake City, started to cross the street, which extends east and west, having two street-car tracks thereon at that point, and the motorman of a west-bound street car, seeing him, stopped the car, thinking the plaintiff wanted to get on; that the plaintiff had in his hands a transfer ticket, which he handed to the conductor of the car, and, on being asked whether he wanted the car, the plaintiff replied, "No, go on;" that he, being in a hurry to cross the street, immediately stepped around behind the car, then across a space between the tracks, seven feet wide, and on the south track, where he was struck by an east-bound car, and injured; and that, when he started across the street, he looked for a west-bound car but not for one bound east. The plaintiff, in his own behalf, testified: "I looked across the street, and there was a car coming down west. They asked me if I wanted the car, and I said, 'No,' go on; and I waited, and as soon as I stepped out, the front of the other car knocked me down. That is all I know. It is perhaps seven or eight rods from the curb to the first car line that the cars run west on. I never made any measurement. I looked east to see whether there was a car coming,--whether there was a car coming from the east. I didn't look for a west car. I saw a car coming from the east, and went around it. It was just standing there, and I went around behind it, and stepped out,"--and further testified: "When I left the north side of the street, I didn't look anywhere, but I looked for the car. There was a car there. I didn't see any car coming from the west. I don't know as I looked. I didn't look to see the car. I have lived in Salt Lake twenty-five years. * * * I was in a hurry to go across the street to the Denver & Rio Grande ticket office." It further appears that the accident happened nearly midway between Main and West Temple streets, in the business portion of the city, and that, at the time the car struck the plaintiff, it was running at a rate of speed of three to four miles per hour. There is also evidence to the effect that, after the car was stopped, the motorman permitted it to move forward a short distance, a foot or so, and that thereby the plaintiff's foot was injured. So, there is some evidence to the effect that at the place of injury there are flagstones, laid flush with the paving blocks, a part of the way across the street, and some testimony tending to show a crossing there, and there is evidence which shows that the public cross at any place between Main and West Temple streets and that the cars stop at any place on that portion of the street, but at no place in particular, to take passengers on and off, not recognizing any crossing. The witness, McGurrin, testifying in behalf of the plaintiff, said: "I noticed there were some flagstones laid in the center of the track going across north and south. Whether it would be called a crossing or not, I hardly know. * * * I cannot say that I ever saw a person who wanted to cross the street go ten feet either east or west in order to get on that crossing. I cannot say I ever saw a person going out on those flags to wait for a car, nor a lady cross upon those flags. I have seen them cross everywhere. I think the car moved after it stopped from half a foot to a foot, because I could see the whole car move." The motorman of the east-bound car observed the plaintiff before he disappeared behind the west-bound car, kept sounding the gong as he approached the west-bound car, and, upon discovering his perilous position in front of the car, he immediately applied the reverse motion, and stopped as quickly as possible. The plaintiff had been a...