Clark v. Oregon Short-Line Railroad Co.

• Decision Date: 08 November 1899
• Citation: 20 Utah 401,59 P. 92
• Court: Utah Supreme Court
• Parties: WILLIAM E. CLARK, RESPONDENT v. OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

59 P. 92

20 Utah 401

WILLIAM E. CLARK, RESPONDENT v. OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

November 8, 1899

Appeal from the Fourth District Court, Utah County, Hon. W. N Dusenberry, Judge.

Action by plaintiff to recover damages for the wrongful and negligent killing of a cow by one of defendant's trains. From a judgment for plaintiff. defendant appealed.

Reversed.

P. L Williams, Esq., Chas. D. Savery, Esq., and J. W. N Whitecotton, Esq., for appellants.

The appellant contends that under the state of facts shown by the testimony, the plaintiff cannot recover, because it appears that the accident was caused entirely by his own negligence, in turning his cow out upon the highway upon which a railroad track was known to run, unattended. Bunnell v. R. G. W. Ry. Co., 13 Utah 314.

Mr. Beach, in his last edition of his work on Contributory Negligence, at pages 623-4, adopts the language of this decision as the law and in a note uses the following words:

"* * * But when the testimony on the part of the plaintiff, who seeks to recover damages for injuries resulting from negligence, shows conclusively that his own negligence or want of ordinary care, was the proximate cause of the injury he will not be permitted to recover, even though the answer contains no averment of contributory negligence. Bunnell v. R. G. W. Ry. Co., 13 Utah 323."

We say, therefore, that the evidence in this case wholly fails to show that the defendant was negligent in any particular, while it abundantly shows, that the plaintiff was guilty of the grossest kind of carelessness in turning his cow out upon the railroad track, unattended, and that this was the proximate cause of the injury. That being true, the trial court ought to have given defendant's request to instruct the jury to return a verdict for the defendant. Having refused to do that, the court ought to have granted defendant's motion for a new trial.

In support of our contention we respectfully cite the following authorities: Bunnell v. R. G. W. Ry. Co.; 13 Utah 314; Pennsylvania R. Co. v. Aspell, 23 Pa. 147; Freer v. Cameron, 55 Am. Dec. 663 and note; Shearman and Redfield on Negligence, 61; Thompson on Negligence, 1146; Wharton on Negligence, 300; Beach on Contributory Negligence, 3d ed. 14; Munger v. Tonawanda R. Co., 4 N.Y. 349.

An especially strong case, and apparently entirely applicable to the facts in the case at bar is that of Robinson v. Flint, etc., R. Co. 79 Mich. 323 (S.C. 10 Am. St. R. 174); Perkins v. Eastern R. Co., 50 Am. Dec. 589; Williams v. Mich. Cent. R. Co., 2 Mich. 259; Railroad Co. v. Skinner, 19 Pa. 298; Keeney v. Ore. Ry. & Nav. Co., 24 P. 233.

M. M. Warner, Esq., for respondent.

The defendant was negligent. First, in not condemning sufficient land; there, to have its track and trains free from being covered over by branches of trees, growing within six feet of its track on the banks of a cut four or five feet deep, to a height of eight feet or more. Second, in running an extra or special train out from under these trees onto a highway which was extensively traveled and used by the public, at a speed of thirty-five or forty miles an hour, using no precaution whatever to prevent accidents. See English v. Railway Co., 13 Utah 407; Bitner v. Railway Co., 4 Utah 502.

The case of Olsen v. O. S. L. Ry. Co., reported in 9 Utah at page 129, is especially in point.

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

OPINION

BASKIN, J.

This is an action in which the plaintiff, who is the respondent, seeks to recover the value of a cow alleged to have been killed through the negligence of the appellant in running one of its freight trains. The answer denied the negligence of the appellant alleged by plaintiff. Contributory negligence on the part of the plaintiff was not plead in the answer.

At the close of the testimony the appellant requested the trial court to instruct the jury to return a verdict in favor of defendant, of no cause of action. This request was denied, and the jury returned a verdict in favor of plaintiff for $ 50.00.

The only error assigned and urged by appellant is, that said request was improperly refused.

It is well settled that the court may withdraw the case from the jury altogether, and direct a verdict for the plaintiff or defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it. Pool v. Southern P. Co., 20 Utah 210; 58 P. 326, and cases cited.

In the case of Bunnell v. Railway Co., 13 Utah 314-323, 44 P. 927, it is held that, "Generally, contributory negligence, is a matter of defense, and must be alleged and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks to recover damages for injuries resulting from negligence, shows conclusively that his own negligence or want of ordinary care was the proximate cause of the injury, he will not be permitted to recover, even though the answer contains no averment of contributory negligence."

It follows from the foregoing rules, which are well established, that if the evidence in this case clearly shows that the plaintiff was guilty of negligence which, materially contributed to the proximate cause of the injury complained of, then the trial court erred in refusing to instruct the jury as requested by defendant.

J. B Clark testified on behalf of plaintif...