Corbett v. Oregon Short Line R. Co.

• Decision Date: 31 March 1903
• Docket Number: 1376
• Citation: 25 Utah 449,71 P. 1065
• Court: Utah Supreme Court
• Parties: WALTER S. CORBETT, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

71 P. 1065

25 Utah 449

WALTER S. CORBETT, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1376

Supreme Court of Utah

March 31, 1903

Appeal from the Fifth District Court, Juab County.--Hon. Thomas Marioneaux, Judge.

Action to recover for the negligent killing of the plaintiff's infant daughter at Mammoth in Juab county. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

P. L Williams, Esq., Geo. H. Smith, Esq., and J. W. N Whitecotton, Esq., for appellant.

Contributory negligence was not pleaded in the answer as a special defense. The appellant submits that the rule established by this court in Bunnell v. Railway Co., 13 Utah 314 and Clark v. Railroad Co., 20 Utah 401, and by the general law is, that if it appear from the plaintiff's own testimony, that he was guilty of negligence which contributed proximately to the injury it is necessary that it be pleaded specially, and when it so appears, such negligence will defeat the plaintiff's right to recover.

The following cases, mainly actions for the death of children though not presenting uniform views upon the subject, are instructive, and clearly indicate that the modified verdict in this case is still larger than would be sanctioned by the courts generally. Potter v. Railroad Co., 22 Wis. 619, and cases; Oldfield v. Railroad Co., 3 E. D. Smith, 105; O'Mara v. Railroad Co., 38 N.Y. 445; Ihl v. Railroad Co., 47 N.Y. 320; McIntyre v. Railroad Co., 37 N.Y. 293; 5 Am. and Eng. Ency. Law, 129; Chicago v. Major, 18 Ill. 350; Quin v. Moore, 15 N.Y. 433; McMahon v. Mayor, etc., 33 N.Y. 644; Railroad Co. v. Barker, 33 Ark. 363, and cases; Railroad Co. v. Brown, 26 Kan. 459-561; Parsons v. Railroad Co., 94 Mo. 286-300; Hurt v. Railway Co., 94 Mo. 265.

Messrs. Powers, Straup & Lippman for respondent.

HART, District Judge, rendered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

HART, District Judge

STATEMENT OF FACTS.

Plaintiff brought this action to recover for the negligent killing of his infant daughter on the 21st of March, 1901, at Mammoth or Robinson, in Juab county. On that day the defendant was operating backwards, at the rate of from twelve to twenty-five miles per hour, what is known as a "Shay engine," which could have been stopped in a shorter distance than a common engine. It was an almost straight track, and there was an unobstructed view of the child on the track from the station near which the engine and tender started to the point of the killing, a distance of from 1,000 to 1,500 feet. There were three men and one woman upon the engine at the time; the men all standing in the gangway, and no one on the lookout on top of the tender. No signal was given after starting, although a street crossing intervened a distance of from fifty to seventy-five feet from the place where the child was struck. From the station to the place of injury, houses are thickly built on each side of the track, which is unfenced, and quite commonly used as a highway by people and children in walking up and down. Plaintiff resided between Silver City and Mammoth, and on said day came into the latter town on some little business, bringing his wife and three children; one being four years old, the deceased two years and three months old, and a baby three months old. The three children were left in charge of a Mrs. Harris, sister-in-law to plaintiff, at her house, which was 450 to 550 feet from the place of the accident. The three months old baby was sleeping when plaintiff and his wife left the home of Mrs. Harris to transact their business, and twenty or thirty minutes thereafter the injury and death occurred. There is no evidence as to what care or attention Mrs. Harris paid to the children, nor how the deceased, with two or three other small children, came to be upon the track. It was a clear day, and between four and five o'clock p. m., when the child was run over. Upon the trial the jury returned a verdict of $ 15,100, which upon a motion for new trial was reduced by the court to $ 6,100, which reduction was acquiesced in by plaintiff in preference to submitting to a new trial. Defendant offered no evidence upon the trial, and conceded in its argument to the jury that the men in charge of the engine were negligent.

HART, District Judge, after stating the facts, rendered the opinion of the court.

Defendant excepts to the refusal of the court to give its request to instruct as follows: "I charge you that in this case even though you find from the evidence that the defendant was negligent in the operation of the engine which caused the injury, and you further find that the parents, or either of them, of the deceased child, were also guilty of negligence in permitting it to go unattended upon the railroad track, and that such negligence on the part of the parents, or either of them, contributed to bringing about the injury complained of, the plaintiff can not recover, and you verdict should be for the defendant, unless you further find from the evidence that notwithstanding such negligence of the parents, or either of them, the defendant's servants, by exercise of ordinary care, might have avoided the accident after in fact discovering the child's peril." It was not error to refuse this request for the reasons: (1) There was no evidence of contributory negligence of the parents, or either of them, and in this State the burden does not rest upon the plaintiff to show his freedom from negligence, but upon defendant to prove contributory negligence, unless the plaintiff's testimony tends to so prove it. (2) That it does not correctly state the law as applied to the facts of this case, in that it assumes that the defendant was under no obligation to anticipate persons being upon the track at this point. With an unfenced track bordered by habitations on each side, and used quite generally as a highway for both grown people and children, surely some diligence was required by defendant, other than "after in fact discovering the child's peril." In the case of Young v. Clark, 16 Utah 42, 49, 50; 50 P. 832, this court held: "Where the public in considerable numbers have been accustomed for a great length of time to use a bridge or railroad track as a footpath in populous cities or thickly-settled communities, without molestation or objection from the company, and by reason of such general custom the presence of people upon such track or bridge is probable, or might reasonably be anticipated, those in control of passing trains are bound to use reasonable diligence and precaution to prevent injury to those who might be thereon, even though they were trespassers." The instruction asked by the defendant ignored entirely the question whether the use of the track for foot passengers was not such as to render it probable, or...