Clark v. Union Pac. R. Co.

• Decision Date: 14 April 1927
• Docket Number: 4505
• Citation: 70 Utah 29,257 P. 1050
• Court: Utah Supreme Court
• Parties: CLARK et al. v. UNION PAC. R. CO. et al

257 P. 1050

70 Utah 29

CLARK et al. v. UNION PAC. R. CO. et al

No. 4505

Supreme Court of Utah

April 14, 1927

Rehearing Denied July 12, 1927.

Appeal from District Court, Fourth District, Utah County; Ephraim Hanson, Judge.

Action by Joyce Isgren Clark and others against the Union Pacific Railroad Company and others. Judgment on directed verdict for defendants, and plaintiffs appeal.

Reversed, and cause remanded for new trial.

J. W Robinson, of Provo, and J. Robert Robinson, of Salt Lake City, for appellants.

George H. Smith, J. v. Lyle, R. B. Porter, and Dana T. Smith, all of Salt Lake City, for respondents.

STRAUP J. THURMAN, C. J., and CHERRY and GIDEON, JJ., concur. HANSEN, J., being disqualified, did not participate. RITCHIE, District Judge, dissenting in part.

OPINION

STRAUP, J.

The appellant, plaintiff below, brought this action to recover damages for the wrongful death of her intestate, resulting from a collision at a public crossing. The negligence alleged on the part of the railroad company is the failure of the train operatives to give signals and warnings of the approach of the train by sounding the whistle and ringing the bell of the engine, operating the train at an excessive and dangerous speed, and failing to observe a proper lookout. The defendant denied the alleged negligence, and pleaded contributory negligence. At the conclusion of all of the evidence, both on behalf of the plaintiff and of the defendant, the court directed a verdict in favor of the defendant. The motion was based and granted on the ground of insufficiency of evidence to show any of the alleged negligence on the part of the defendant and on the ground of contributory negligence of the deceased in not looking and listening for the approach of the train. The plaintiff appeals. The principal error assigned is the ruling directing the verdict.

The crossing where the collision occurred is about threequarters of a mile southwesterly of Spanish Fork in Utah county. There the railroad track runs in a southwesterly and northeasterly direction; the public highway in a northerly and southerly direction. The accident occurred in January, 1925, at 9:38 a. m. The weather that morning was foggy. All the witnesses testified that the fog was very heavy; that it was an unusual fog. Some of the witnesses testified that it was the heaviest fog they had ever seen. The testimony is in conflict as to what distance an automobile or train could be seen. Witnesses on behalf of the plaintiff testified that it could be seen at a distance of only 25 to 30 feet, others at a distance of from 50 to 75 feet, and from 50 to 100 feet. Witnesses for the defendant testified that it could be seen 150 feet and more; others at more than 500 or 600 feet. The train was a local train consisting of an engine and two coaches traveling in a southwesterly direction from Spanish Fork. The deceased, driving an automobile truck used in hauling children to school, was approaching the crossing from the south. With him on the seat was another. They were on their way to gather up school children several miles to the north of the crossing and to convey them to Spanish Fork. The train was eight minutes late. The deceased and his companion also were late, due to some disability of the regular truck used in gathering up children north of the crossing. The truck was struck by the train at the crossing, and the deceased and his companion killed. According to the testimony of witness for the plaintiff, the train, after it struck the truck ran 950 feet before it was stopped, and, according to the testimony of witnesses for the defendant, 907 feet.

We have a statute requiring the bell of a locomotive to be rung continuously from a point 80 rods from a road or highway crossing until the road or highway is crossed, but the sounding of the locomotive whistle at least one-fourth mile before reaching any such crossing is deemed equivalent to ringing the bell. Two witnesses, school girls 15 and 16 years of age, testified on behalf of plaintiff that they lived several miles north of the crossing at or near Palmyra; that the regular truck was not that morning in condition to convey them to school at Spanish Fork; and that Clark, the deceased, was to come after them; that they walked on slowly, expecting to meet Clark at any time; that they were familiar with the crossing, having traveled over it twice very day for a considerable time; and that they also knew the time the train regularly passed the crossing each morning; that, as they walked along the highway, and when about 80 rods from the crossing, they also were about 80 rods from the whistling post northeast of the crossing; that, as they were expecting to meet Clark at any time, they walked along slowly, and that it took them 15 or 20 minutes to walk the last 80 rods before reaching the crossing; that they theretofore going along the highway often heard the whistle sounded for the crossing, and even when at home heard it several miles away; that on the morning of the accident, knowing the time the train generally came along, they listened for its approach to know how late they would be at school and how many classes they would miss, but that they heard no whistle sounded or bell rung; that, when they got to the crossing, they learned of the accident from section men at the crossing, heard the whistle of the train as it backed into Spanish Fork, and then walked hastily on towards Spanish Fork.

Two other witnesses, each with a team of horses and a wagon hauling beet pulp, were traveling north on the highway towards the crossing. They testified that between 9:30 and 9:37 a.m. (the train generally passed the crossing at 9:30) they were about a quarter of a mile, or between a quarter and a half a mile, from the crossing; that they were familiar with the crossing, and knew the time the train usually passed the crossing; that their hearing was good; and that there was no noise or anything to prevent their hearing the bell or the whistle had the bell been rung or the whistle sounded; that they knew they were approaching the crossing, and because of the fog they could not see very far, only from 75 to 100 feet; that they listened for the train to know whether or not it had passed the crossing so their teams would not be hit by the train when they got to the crossing; that they did not hear any whistle sounded or bell rung; that, when they got to the crossing, they learned of the accident and that the train had gone back to Spanish Fork.

Another witness testified for the plaintiff that on the morning of the accident, between 9 and 10 o'clock, he was feeding cattle about 70 or 80 rods south of the crossing; that he was familiar with the crossing, and knew the time the train passed each morning; that in feeding cattle at one certain place all the time he naturally watched for the train and for the time; that on the morning in question he was watching and listening for the train, but heard no bell rung or whistle sounded, and that it was so foggy that a train passing along could not be seen.

Another witness testified that about 9 o'clock on the morning of the accident he was in a field feeding cattle about 55 rods south of the whistling post northeast of the crossing, and about 80 rods from the crossing; that other mornings, while feeding cattle at the same place, he heard the whistle sounded as the train came along, but on the morning in question he did not hear the bell rung or the whistle sounded, and that because of the fog the train was not visible.

This, in substance, is about all of the evidence on behalf of the plaintiff as to the failure of the defendant to give signals or warnings of the train's approach.

The train crew, on behalf of the defendant, testified that the whistle was sounded and the bell rung at different places between Spanish Fork and the crossing, and that the speed of the train as it approached the crossing was about 30 miles an hour. The fireman testified that he saw the truck moving along the highway towards the crossing when it was about 125 feet from the crossing; that he supposed the driver would stop and let the train go by, but, seeing that the driver was not doing so, he gave the alarm to the engineer, who, about 30 or 35 feet from the crossing instantly applied the brakes, and did all that he could to stop the train; that the train was traveling at about 28 or 30 miles an hour; and that the automobile was traveling at about the same speed; but that the engineer was unable to stop the train until it had run 907 feet. A number of other witnesses, passengers on the train, also testified on behalf of defendant. Some of them testified that they felt the application of the brakes, and just a second or two before that heard the whistle sounded, some that the application of the brakes and the sounding of the whistle were at the same time, others that the whistle was sounded just after the brakes were applied, and that they heard no other whistle sounded after the train left Spanish Fork and before the collision. Other witnesses for defendant testified that they heard the whistle sounded frequently between Spanish Fork and the crossing.

While the defendant gave evidence to show that the train ran 907 feet from the crossing, or 937 feet after the brakes were applied, before the train was brought to a stop, the plaintiff gave evidence to show that the train did not stop until it had run 950 feet. Evidence also was given to show the kind of engine and coaches making up the train; that the brakes and equipment were in good condition, the track level and the rails wet. The plaintiff called an engineer, and, after sufficiently qualifying him, showed by such witness that such a train, under the conditions stated,...