Coray v. Southern Pac. Co

• Decision Date: 31 October 1947
• Docket Number: 6967
• Citation: 185 P.2d 963,112 Utah 166
• Court: Utah Supreme Court
• Parties: CORAY v. SOUTHERN PAC. CO

185 P.2d 963

112 Utah 166

CORAY v. SOUTHERN PAC. CO

No. 6967

Supreme Court of Utah

October 31, 1947

Appeal From District Court, Second District, Weber County; John A Hendricks, Judge

Reversed by U.S. Supreme Court March 1, 1949.

Action by Howard F. Coray, ancillary administrator of the estate of William Frank Lucas, deceased, against the Southern Pacific Company for alleged wrongful death. Judgment for defendant and plaintiff appeals.

Affirmed.

Rawlings, Wallace & Black and Clyde & Coray, all of Salt Lake City, for appellant.

Ray Quinney & Nebeker, of Salt Lake City, for respondent.

PRATT and WADE, JJ., concur.LATIMER, Justice, not participating.

OPINION

McDONOUGH, Chief Justice.

The trial court directed a verdict against the plaintiff administrator in an action against the railroad for alleged wrongful death, and plaintiff appeals. There is no serious dispute as to the facts. Plaintiff contends that the death resulted from negligence in alleged violation of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., while respondent contends that the decedent was furnished with a safe appliance and mechanism, and that the death of decedent was proximately caused solely by his own heedless conduct in running into the caboose of a freight train which had come to an emergency stop.

On May 24, 1944, decedent and one Lynch waited for east-bound freight-train No. 1/582 to pass, which was required to take the next siding east of Newfoundland to permit west bound passenger train 587 to go through on the main line. Lucas was in charge of a track car and he had some pay checks to take to the men at the next station. Lucus and Lynch pushed the motor track car onto the track behind the freight train and proceeded to follow the train which was scheduled to go onto the next siding. There was a company rule in effect which required operators of track cars to keep such cars at least 400 feet from the rear of the train. Such track car could be operated at a speed of not to exceed 35 miles per hour and at such speed could be stopped within a distance of 100 feet. When the track car was started, it was about 900 to 1200 feet behind the freight train. Both the freight train and the track car were traveling toward the approaching passenger train. Decedent operated the track car, and both he and Lynch faced the west instead of the direction toward which they were moving. With their backs toward the east they in effect were traveling backwards.

When the freight train was about 3/4 of a mile east of Lemay, Utah, it came to an emergency stop before it reached the siding. The train being equipped with airbrakes, came to a sudden but easy stop by reason of the fact that the triple union nut became disconnected from the triple-valve on the 60th car from the engine, which disconnection was due to the threads on the triple valve being worn. As a result of the triple union nut becoming disconnected from the triple-value, it permitted the air to escape from the airline and to set the brakes in emergency.

There was no jerking, and it required about 1350 to 1800 feet distance to complete the stop. The braking system is so designed that such event will occur then the air is released, air-pressure being essential to release the brakes and to keep them released. The conductor noticed that there was an emergency stop, and one witness stated that it appeared that the engineer had decided that he could not make it to the siding. When attention was called to the air-gauge, it was noted that it registered zero, which meant that the air had been released. Just at that moment, one of the men in the caboose observed decedent and Lynch on the track car with their backs to the train which they were approaching, about three car lengths or about 150 feet to the rear. Some attempts were made to signal to these men on the track car, but such efforts were in vain in consequence of the failure of the men on the track car to face the direction in which they were moving and also by reason of the noise of the motor. The track car crashed into the rear of the caboose, throwing off both men and in consequence of such collision decedent was killed. Lynch received injuries, but they were not fatal.

At the outset, we are confronted with a motion on behalf of respondent to strike the bill of exceptions on the ground that it was not settled in time, and also, a motion to dismiss the appeal, inasmuch as it was filed more than 90 days after entry of judgment.

The judgment on the verdict was entered April 6, 1946. Notice of appeal was served on July 3, 1946, but it was not filed with the clerk until July 6th, which was 91 days after entry of judgment. However, there appears in the record an order dated July 1, 1946, denying a motion for new trial. That a motion for a new trial, seasonably made, suspends the finality of a judgment until the court's ruling thereon ( Fuller v. Ferrin et al., 51 Utah 105, 168 P. 1179, and cases there cited), is conceded by respondent. Likewise, the statutory time allowed for settlement of a bill of exceptions, in cases in which a motion for a new trial is interposed, runs from notice of the ruling on such motion. Sec. 104-39-4, U.C.A.1943.

But respondent apparently takes the position that the record on appeal must affirmatively show that the motion for a new trial was made within the time allowed by statute or such extensions thereof as may have been granted by the trial court. The papers filed in this court contained a motion by appellant to be relieved of his default in failing to timely serve notice of motion for a new trial, together with supporting affidavits and an order of the trial court granting the relief prayed. These were not incorporated in the bill of exceptions and respondent contends that they are not included in the judgment roll. Appellant argues that they are. Without discussing the cases cited by respondent in support of its contention, we shall assume that they are not and are hence not before us on appeal.

We have, therefore, a record which discloses the date, indicated hereinabove, upon which the motion for a new trial was overruled, the order overruling such motion being a part of the judgment roll, and which reveals that the appeal was taken and the bill of exceptions served within the time allowed by statute. Was it incumbent upon appellant to show by the record that the motion so overruled was timely made? We think not. If the contrary be held, then in the case of every appeal which an appellant desires to predicate on the judgment roll without an extended bill of exceptions, it would be necessary to settle a bill containing merely the date upon which the motion for a new trial was made. The statutes do not so provide, nor do principles of appellate procedure so dictate. True, this court will sua sponte take cognizance of its lack of jurisdiction. Furthermore, the record before us must show jurisdiction. The record does so show when it reveals that notice of appeal was served and filed within 90 days after the date of an order overruling a motion for a new trial. This prima facie showing of jurisdiction may, of course, be negatived by other parts of the record. Thus, if the bill of exceptions contains the motion for a new trial exhibiting that it was not timely filed, lack of jurisdiction is shown, unless there is also evidenced by such record a timely extension of time for filing the motion or an order relieving appellant of his default in failing to move in time.

The cases cited by respondent are not to the contrary. In Progress Spinning & Knitting Co. v. Dixie Fire Ins. Co., 43 Utah 303, 134 P. 1166, the record affirmatively showed that the notice of intention to move for a new trial was given twenty days after judgment and there was no claim that appellant had been relieved from his default in failing to file the same in time. Under those circumstances we held that we could not assume that appellant had been relieved from his default in the absence of a showing that the motion for a new trial was not in fact overruled because it was not filed in time. To the same effect is Felt v. Cook, 31 Utah 299, 87 P. 1092. In those cases the record disclosed the time when notice of intention to move for new trial was served. In Warnock Ins. Agency v. Peterson Inv. Co., 35 Utah 542, 101 P. 699, the notice of appeal was served more than six months after judgment (the time then allowed for taking an appeal being six months). There, as here, the notice of intention to move for new trial, motion for new trial and order overruling the same were attached to the judgment roll, but not made a part of the bill of exceptions. At that time the statute did not make the order overruling the motion for new trial a part of the judgment roll. We held that the record respecting the motion for new trial was not a part of the judgment roll, and therefore not before us on appeal. Hence, we could not consider the same and the appeal was dismissed.

Respondent points out that appellant concedes in his brief that the notice of motion for a new trial was not served and filed within five days after entry of judgment. However, this concession is made as a preface to his argument that the motion to be relieved of default and the order made pursuant thereto are properly before us in the judgment roll. The mere exhibition of these documents would reveal that the notice of motion for a new trial was not filed within five days after entry of judgment, but if they may not be considered for the purpose of showing the order relieving of default, because not properly a part of the record, neither may they be regarded to show the default itself. The concession in the argument made in effect in connection with the proffer of the documents in question should...