Christensen v. Oregon Short Line R. Co.

• Decision Date: 14 April 1905
• Docket Number: 1626
• Court: Utah Supreme Court
• Parties: CHRISTENSEN v. OREGON SHORT LINE R. CO

80 P. 746

29 Utah 192

CHRISTENSEN v. OREGON SHORT LINE R. CO

No. 1626

Supreme Court of Utah

April 14, 1905

APPEAL from District Court, First District; Charles H. Hart, Judge.

Action by Lars Peter Christensen against Oregon Short Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

AFFIRMED.

P. L Williams and Geo. H. Smith for appellant.

APPELLANT'S POINTS.

Among the errors in the admissibility of testimony assigned in the record are those to the rulings of the court in allowing the plaintiff to introduce proof that other persons besides himself were in the habit of having their cattle driven to and from the pastures across this railroad crossing by children of about the same age as plaintiff's son. Several questions of this character were asked of plaintiff and other witnesses.

The court admitted over objections, testimony that the neighbors of plaintiff had their cattle driven by children ranging from six to fifteen years old. The evident purpose of such testimony was to show that plaintiff was only doing what his neighbors were doing and therefore was not negligent.

No usage or custom was pleaded, therefore usage or custom could not be proven. (12 Cyc., 1097.)

But even if it were pleaded it could avail nothing in this case because local customs cannot change the law of negligence. (Jenkins v. Hooper Irrigation Co., 13 Utah 100.) As shown by the testimony in this case, the crossing where the accident occurred was a country crossing outside of the city in a sparsely settled district. We therefore contend that all of the evidence admitted over defendant's objection and exception, with reference to how fast the train was traveling as it approached this crossing, was error, because as this place defendant had a right to run its trains at such a speed as the demands or convenience of its business required. This court has repeatedly held that in a sparsely settled district it is not negligence as to those on the highway to run a railroad train at a high rate of speed. (Silcock v. R. G. W. Ry., 22 Utah 179; Clark v. O. S. L. R. R. Co., 20 Utah 401; Bunnell v. R. G. W. Ry. Co., 13 Utah 314.)

Our position, is that it was error for the court to permit or authorize the introduction of any testimony of any kind or character with reference to any act or acts of negligence on the part of the company, except those specifically alleged in the complaint. (Peay v. Salt Lake City et al., 11 Utah 331; Coates v. U. P. Rd. Co., 24 Utah 304; Ohlenkamp v. U. P. R. R. Co., 24 Utah 232; Gurley v. Mo. P. Ry. Co., 93 Mo. 445; 14 Enc. of Pleading and Practice, 342; Chicago, etc., Ry. Co. v. Driscoll, 52 N.E. 921; Ebersey v. Chi. City Ry. Co., 164 Ill. 518; McCarty v. Rood Hotel Co., 144 Mo. 397; Mitchell v. Prange, 110 Mich. 78; Plefke v. Knapp, 145 Mo. 316; Port Royal & A. R. Co. v. Tompkins, 83 Ga. 759; Ill. Cent. Rd. Co. v. Godfrey, 71 Ill. 500; Chicago W. D. R. R. Co. v. Kluger, 9 Ill.App. 613; Schindler v. Milwaukce L. S. & W. R. Co., 77 Mich. 136; 42 A. E. Rd. Cases 192; Hanlon v. South Boston Horse Rd. Co., 129 Mass. 310; Price v. St. Louis Ry. Co., 72 Mo. 414; Toledo W. R. Co. v. Foss, 88 Ill. 551; Toledo W. & W. R. Co. v. Beggs, 85 Ill. 80; Thomas v. Ga. R. & B. Co., 40 Ga. 231; Buffington v. A. R. R. Co., 64 Mo. 246; Edens v. Hannibal & St. Joe R. R. Co., 72 Mo. 212; Ely v. St. Louis, etc., Ry. Co., 77 Mo. 34; Field v. C. R. I. & P., 75 Mo. 614; Cowan v. Muskegon R. R. Co., 84 Mich. 583.)

We next contend that in any event the plaintiff was not entitled to recover in this action, and therefore the defendant's motion for non-suit should have been sustained and its request for peremptory instruction should have been given, because by the undisputed evidence the negligence alleged was not the proximate cause of the accident and injury. By proximate cause is meant that cause which forms an unbroken connection between the wrongful act complained of and the injury, a continuous operation or succession of events so linked together as to make a natural whole, unchanged and uninfluenced by any independent cause intervening between the wrongful act alleged and the injury, and that the injury followed as a natural and probable consequence of the wrongful act of negligence alleged and that it ought to have been foreseen in the light of attending circumstances. All of these things were wanting in this case, and are all necessary before the defendant can be held liable. (Railway Co. v. Elliott, 55 F. 949; Davis v. Chicago, Milwaukee & St. P. Ry. Co., 93 Wis. 470; s. c., 57 Amer. Stat. Rep. 935; Huber v. La Crosse Ry. Co., 92 Wis. 636; 53 Amer. Stat. Rep. 940; Galveston H. & S. A. Ry. Co. v. Mahala Chambers et al., 73 Texas 296; s. c., 11 S.W. 279; Barkley v. Mo. P. Ry. Co., 96 Md. 367; Long Island Rd. Co. et al., v. Killien, 67 F. 365; Cincinnati N. O. & T. P. v. Mealer, 50 F. 725; Lewis v. Flint & P. M. Ry. Co., 54 Mich. 65; s. c., 52 Amer. Rep. 790; Burnett v. Eastern & A. & R. Co. [N. J.], 10 A. & E. Ry. Cases, new series, 469; Baltimore & Ohio Railroad Company v. Anderson, 75 F. 811; Dubois v. N.Y., etc., Rd. Co., 88 Hun 10; Georgia Ry. Co. v. Williams, 93 Ga. 253; 18 S.E. 825; Wood v. Pa. Co., 177 Pa. 306; s. c., 5 Amer. & Eng. Rd. Cases, new series, 672; Ry. Co. v. Stebbing, 63 Md. 504; Schaffer v. Rd. Co., 105 U.S. 249; Bosch v. Rd. Co., 44 Iowa 402; Selleck v. Lake Shore Rd. Co., 58 Mich. 195.

C. C. Richards and J. D. Call for respondent.

RESPONDENT'S POINTS.

The first assigned error upon which the appellant relies for a reversal of the judgment herein is with reference to the admissibility of the testimony introduced by the plaintiff tending to prove that other persons were in the habit of sending their cattle to and bringing them from the pastures on the west side of the railroad track and over the crossing at which the accident occurred. This testimony, as well as the testimony relating to the absence of gates, and other similar testimony, the admission of which was assigned as error by counsel for the appellant, was introduced for the purpose of showing conditions that existed there, which required a greater degree of caution and care upon the part of the defendant and its servants in running its train over that crossing, and as characterizing the negligent act of the defendant in driving its engine and passenger train over the crossing at the speed testified to, in reckless disregard of the safety of any person who might be at, near or passing over the crossing. The testimony was not only material for the reasons already suggested, but for the further reason of showing notice to the defendant company of conditions requiring care in passing over this particular crossing. (Olson v. O. S. L. R. R. Co., 24 Utah 468, 469; Young v. S. H. H. Clark et al., 16 Utah 42; Improvement Co. v. Steed, 95 U.S. 161, 24 L.Ed. 403.)

It is true that there were no allegations respecting these matters in the complaint, but the plaintiff did not offer this testimony as proof of acts of negligence, upon which the plaintiff was entitled to recover, and did not urge upon the trial of the case that it should be considered for that purpose, and the jury were cautioned by the court that this testimony was not to be so considered.

As before stated, the only purpose was to characterize the act of negligence charged and to show a condition which required the exercise of a greater degree of care and caution in passing over this crossing, and we think that the jury must have understood the purpose of the evidence and did not consider it for any other purpose. (Young v. Clark, 16 Utah 51.)

It is possible for the party not only to contribute to his own injury but even to be himself its immediate cause, and yet to recover compensation therefore. (1 Shear. & Red. on Neg., 123.) One, who, seeing his property imperiled, hastens to protect it and in doing so imperils his own person, is not necessarily deprived of remedy thereby. It is his right and duty to protect his property so long as he can do so without recklessly exposing himself to injury. (Rexter v. Starin, 73 N.Y. 601; Wasmer v. Delaware R. Co., 80 N.Y. 212; North Pa. R. Co. v. Kirk, 90 Pa. 15.)

It will be borne in mind that plaintiff's son did not cross the track nor run in front of the engine, but that he was at the side of the track with his back towards the approaching engine, and intent upon driving the cow back to the herd. Even in the case of an adult we submit that the question would be one for the jury as to whether or not, under all of the circumstances, the injured party had recklessly exposed himself to a known danger. (Riley v. Transit Co., 10 Utah 428; Thompson v. Transit Co., 16 Utah 281; Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Kansas City R. Co. v. Matson, 75 Pa. 503; Berg v. Great N. R. Co., 70 Minn. 272; 73 N.W. 648; Liming v. Ill. R. Co., 81 Iowa 246, 47 N.W. 66; Raynowski v. Detroit, etc., R. Co., 74 Mich. 20; 1 Thompson on Neg. (Last Ed.), secs. 324-328; 2 Thompson on Neg. (Last Ed.), sec. 1492.)

McCARTY, J., delivered the opinion of the court. STRAUP, J., concurs. BARTCH, C. J., dissenting.

OPINION

McCARTY, J.

STATEMENT OF FACTS:

This is an action by plaintiff to recover damages against defendant for the death of his son, a boy between eight and nine years of age, alleged to have been occasioned by the negligence of the defendant, on the 26th day of September 1903, at a public crossing which is about 2,100 feet north of defendant's station house at Brigham City, Box Elder county, Utah. The particular acts of negligence alleged in the complaint are that, while plaintiff's son was driving some cows eastward along the wagon road from a pasture west of the railroad, the defendant carelessly and negligently ran and operated one of its...