Christiansen v. Los Angeles & S. L. R. Co.

Decision Date23 September 1930
Docket Number4855
Citation77 Utah 85,291 P. 926
PartiesCHRISTIANSEN v. LOS ANGELES & S. L. R. CO
CourtUtah Supreme Court

Appeal from District Court, Third District, Salt Lake County; Wm. S Marks, Judge.

Action by Carl Christiansen against the Los Angeles & Salt Lake 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.

H. C. Allen and C. M. Beck, both of Salt Lake City, for respondent.

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

OPINION

FOLLAND, J.

This action is one for damages for loss of a leg suffered by plaintiff in being thrown from a moving box car in defendant's railroad yard in Eureka, Utah, May 14, 1925, while attempting to rescue his minor son from a dangerous situation on the moving car. From a verdict and judgment for plaintiff, the defendant appeals.

The only assignment of error argued by appellant is that the trial court erred in denying its motion for a directed verdict, for the reasons that: (1) The evidence fails to show any negligence on the part of defendant, and (2) that plaintiff's child was a trespasser to whom no duty was owing by defendant, and hence no duty could be owing to the father in the rescue of his child. It is conceded that plaintiff is entitled to recover if defendant was negligent and owed a duty to the child, under the rule that injury to a rescuing party, unless he acted under circumstances of great rashness, should be attributed to a defendant if it is shown that defendant negligently exposed to danger the person who required assistance, and owed the duty of due care to such person. 3 Elliott, Railroads (3d Ed.) 909.

The circumstances of the accident are these: The defendant railroad company maintains a depot at Eureka adjoining the main street of the town. Its main line track is located 30 or 40 feet from the main street with no fence or other obstruction between the track and the street. A short distance from the main line track is a switch track ending west of the station house upon which freight cars are frequently left for loading or unloading. Beyond the switch track are located some residences on the hill with retaining walls between the houses and the railroad yard. Between the tracks and the street are a blacksmith shop and other buildings, while on the other side of the street are occupied dwelling houses. Eureka is a mining camp situated in a canyon partially surrounded by hills. The railroad yard is not large in extent and slopes to the west. The tracks end just west of the station house and incline sharply toward the west. The railroad premises being open and accessible from the street were used by the public in passing from main street to points beyond, by children going to and coming from school, and as a place for play. The children played in the yards and upon the cars. Persons living in the houses on the hill went across the tracks in making a short cut to Main street.

The accident occurred about 1 o'clock in the afternoon of May 14, 1925. On that morning a fruit box car, partially loaded with freight was set out on the switch track near the station house where it remained until the happening of the accident. Lynn Christiansen, a boy of five years, was sent by his mother to the store located near the railroad station for some article. The boy did not return promptly. His mother called to plaintiff, who after working night shift had been in bed and had just arisen, to go and look for the child. Plaintiff went outside his home, which was located on Main street, and saw the child on top of the fruit car in the railroad yard. The car was then moving downgrade with increasing velocity toward some gravel cars about 200 feet away. Plaintiff ran across the yards, climbed on the car, reached the child, and threw him off the car to a place of safety, and immediately thereafter the car collided with the standing gravel cars. Plaintiff was thrown from the car to the ground into a pile of rocks. He suffered compound comminuted fractures of the bones of the leg. So badly was he injured that the leg had to be amputated above the knee.

The specific allegations in the complaint are that the company carelessly and negligently failed to securely fasten or brake the car to prevent it running downgrade, well knowing that there was great and imminent danger and likelihood of children playing in the yard and in and about the car, who might be injured by a moving car running away downgrade and becoming derailed or colliding with other cars; that for many years it had been the custom and habit of children to play in and about the tracks and yard and especially in and upon and around the railroad box cars stored or parked in the yard, without objection and with full knowledge, consent, and acquiescence of the defendant; that the box cars parked in the manner described were alluring, attractive, and tempting to children of immature age, and especially to the children playing in and about the railroad yard.

The evidence on these issues was in dispute, but for the purpose of passing on defendant's motion for a directed verdict, the evidence must be considered and applied most favorable to plaintiff's cause of action. Groesbeck v. Lake Side Printing Co., 55 Utah 335, 186 P. 103. Plaintiff's evidence must be taken as true and every legitimate inference drawn in its favor. Maberto v. Wolfe (Cal. App.) 106 Cal.App. 202, 289 P. 218. That the car was set or parked on an inclining grade is not disputed. There is ample evidence in the record which, if believed, would establish the plaintiff's theory, that is, that car was left on the grade without application of the hand brakes and no blocks placed under the wheels; that it was held merely by the air brakes, which by gradual leakage of air released the brakes so that the car started by reason of the slight jar or motion of a child climbing or moving thereon and ran away down the grade.

One of plaintiff's witnesses said he saw the car set out on the switch track at 7:30 a. m., and that the train crew left without any one going upon the car to set the hand brake. There was no evidence that the car was blocked by placing a piece of wood or other material under the wheels, although it was the custom to do so. No blocks or boards were found in the vicinity. The defendant produced a witness, one of its employees, who said he saw the car set at about 9:45 a. m. and that a member of the switch crew set the hand brake. While four witnesses saw the Christiansen boy upon the car, no one saw him tamper with the brake. Other children were seen to leave the car immediately before the Christiansen child went upon it. Defendant's witness Hogan told of a demonstration made next morning of the car involved in the accident. He said: "We put the car as near as we could tell in the exact spot where it set when it rolled away and we set the hand brakes up and then we released it immediately and the car started to roll off." He also described in some detail the braking apparatus and the ratchet which holds it and was then asked:

"Q. Now how easily could that ratchet be released? A. It could be released by the kick of one's foot.

"Q. Would you say that a small child could have released it by giving it a kick? A. It would be possible if that child had a hammer or club or something to hit it with. They are made for that purpose so they will release, or if it were not so, the brakeman would have to carry a hammer to release it with."

It is fairly inferable from the evidence considered most favorably to plaintiff's cause of action that the car started on its journey without any tampering with the brakes by the child and merely from the jarring or motion caused by the child climbing on the car. Assuming that the case was one for the jury, it was clearly competent for the jury to say that the car was left on the grade without setting the hand brake or without blocking the wheels. The evidence was sufficient to support such a conclusion. It was also for the jury to find whether in view of all the circumstances the placing and leaving of the car thus improperly and imperfectly secured against running away on the grade was in the exercise of reasonable care. Had a car thus imperfectly secured ran away and crossed a public street without warning, thereby injuring a person rightfully on the crossing, and who was not guilty of contributory negligence, could not a jury rightfully find such failure to secure the car an act of negligence on the part of the defendant? If the undisputed evidence should show that the box car had been blocked and hand brakes applied and that they had been released or removed by the child or others than employees of the company, then we might say as a matter of law that the company had discharged its full duty in this respect and could not be held for negligence. Haesley v. Winona & St. P. R. Co., 46 Minn. 233, 48 N.W. 1023, 24 Am. St. Rep. 220. The same result might be reached if the car was merely standing in the yard and the child had fallen from it and suffered injury. Smith v. Hines, 212 Ky. 30, 278 S.W. 142, 45 A.L.R. 980. Here, however, the negligence alleged is not merely the keeping of a standing car in defendant's railroad yards, but in leaving such a car unbraked and unblocked upon a grade where it might start, without notice or warning, either by itself or upon slight movement of one boarding it and thereby proceed downgrade upon a mission of destruction. Witnesses for defendant testified that the air brakes could not hold the car in place on the inclined grade very long--just how long a time it would do so they could not say.

It is fairly clear that the only...

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