Chipman v. Union Pac. Ry. Co.

• Decision Date: 31 August 1895
• Docket Number: 594
• Citation: 41 P. 562,12 Utah 68
• Court: Utah Supreme Court
• Parties: SARAH E. CHIPMAN, BY JOHN I. CHIPMAN, HER GUARDIAN AD LITEM, RESPONDENT, v. UNION PACIFIC RAILROAD COMPANY AND ANOTHER, APPELLANTS

41 P. 562

12 Utah 68

SARAH E. CHIPMAN, BY JOHN I. CHIPMAN, HER GUARDIAN AD LITEM, RESPONDENT, v. UNION PACIFIC RAILROAD COMPANY AND ANOTHER, APPELLANTS

No. 594

Supreme Court of Utah

August 31, 1895

APPEAL from the District Court of the First Judicial District. Hon H. W. Smith, Judge.

Action by Sarah E. Chipman, an infant, by John I. Chipman, her guardian ad litem, against the Union Pacific Railway Company and the Utah Northern & Oregon Short-Line Railway Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

Messrs Williams, Van Cott & Sutherland, for appellants.

Messrs King & Houtz, for respondent.

MERRITT, C. J. BARTCH, J., concurs.

OPINION

MERRITT, C. J.:

This action was brought to recover damages for injuries sustained by plaintiff by reason of being run over by the train of the defendant companies, and having her foot severed at the ankle. The testimony showed that the plaintiff, at the time of the injury complained of, was about three years old; that on the day of the accident she went on the highway. In playing about the track, or attempting to cross it, the plaintiff's foot caught between the rail and a plank forming a part of the road crossing. The train was a passenger train running on regular schedule time. The engineer and fireman, when within half a mile of the place of the accident, could plainly see objects on the track. The train was slowed up, and run under control for a short distance, and then started at increased speed, and ran over the plaintiff, severing her foot at the ankle. The evidence shows that the appellants were grossly negligent. They scarcely make an attempt to excuse their conduct. The jury rendered a verdict for $ 10,500 in favor of plaintiff, and judgment was duly recorded for that sum. Defendants moved for a new trial, which was overruled, and defendants appeal.

There are three questions relied on by appellants as grounds for reversal of the lower court: First, that the court erred in allowing the witness Kelly to testify as to the speed of the train at the place of the injury to the respondent; second, in refusing to admit in evidence a letter written by the witness John I. Chipman to appellants; third, that the amount of the damages awarded by the jury is excessive.

As to the first point, appellants admit that one need not be an expert to testify to the speed of a train of cars. Then any person may testify to such fact. No qualification is necessary. The experience of every person who is competent as a witness is deemed sufficient to admit in evidence such person's opinion on such a matter. Of course, the weight to be...