Cottam v. Oregon Short Line R. Co.
| Decision Date | 03 December 1919 |
| Docket Number | 3355 |
| Court | Utah Supreme Court |
| Parties | COTTAM v. OREGON SHORT LINE R. CO |
Appeal from District Court, First District, Box Elder County; J. D Call, Judge.
Action by James Cottam against the Oregon Short Line Railroad Company.
Judgment for plaintiff, and defendant appeals.
AFFIRMED.
Geo. H Smith, J. V. Lyle, and R. B. Porter, all of Salt Lake City for appellant.
Wedgwood, Irvine & Thurman, of Salt Lake City, for respondent.
Plaintiff seeks by this action to recover damages for an injury to an automobile alleged to have been caused by the negligence of defendant. The acts of negligence claimed were: A defective crossing, failure on the part of the operators of defendant's cars to keep any lookout in approaching a crossing, and negligently permitting the engine to approach such crossing at a dangerous and reckless speed without having the same under proper or any control. The defendant denied the negligence and pleaded affirmatively contributory negligence on the part of plaintiff. The jury returned a verdict in favor of plaintiff. Defendant appeals.
Errors are assigned respecting the admission of testimony, the giving of certain instructions, and the refusal to give other instructions requested.
The accident occurred in a street crossing in Brigham City, Box Elder county, this state. It appears that the tracks of defendant's railroad intersect at right angles Forest street, a street running west from the center of said city to its western limits and continuing thence on as a highway to numerous smaller towns and a large farming community in the northern and western part of that county. The street in question is used, not only by the people of Brigham City in going to and from the passenger depot, but by the residents of the smaller towns and the farming community in coming to Brigham City and in traveling from that city to the larger centers of population located south of Brigham City. The passenger depot of the defendant company is located just east of the main track and south of Forest street, and east of said depot some thirty or forty feet is located another track, referred to in the record as the "house track." The accident happened on the last-named track at the place where Forest street crosses that track. The freight depot of defendant is located some distance north of the street in question on the house track. The switchyard of defendant company is north of Forest street and west of the freight depot. The so-called house track is used for loading and unloading freight and is connected with the main track by a line running diagonally in a southeasterly and northwesterly direction. This connecting line comes into the house track some forty or fifty feet north of the center of Forest street, the place of the accident. It also appears that there is a gradual slope westward from the main street of Brigham City for a distance of some four city blocks leading to the tracks of the defendant company. At the time plaintiff approached defendant's railroad, a passenger train was standing on the main track directly across Forest street. The distance from that track to the house track on that street is approximately sixty-five feet. On the morning of the accident, the plaintiff, in driving westward disconnected the clutch of his automobile and permitted the machine to coast onto the track known as the house track. It is claimed by plaintiff, and was so testified to by him, that by reason of a depression between the rails of this track the automobile stopped; that at that time he ascertained for the first time that the engine of his automobile was not operating; that after attempting to start the engine of the automobile by what is designated as a "self-starter," and which failed to respond, he got out of the automobile and attempted to push it off the track; that he was unable to do so. He testified that at about the time he reached the track he observed an engine attached to two cars coming from the main track toward the house track a distance of some 200 feet away; that the engineer of the approaching engine was sitting with his back toward the crossing and was looking in a northerly direction, and not observing whether any one was or was not on the track where it crosses Forest street; that, upon observing that the...
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