Cowan v. Salt Lake & U.R. Co.

• Decision Date: 12 April 1920
• Docket Number: 3418
• Citation: 189 P. 599,56 Utah 94
• Parties: COWAN v. SALT LAKE & U. R. CO
• Court: Utah Supreme Court

189 P. 599

56 Utah 94

COWAN v. SALT LAKE & U. R. CO

No. 3418

Supreme Court of Utah

April 12, 1920

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Edna Cowan against the Salt Lake & Utah Railroad Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Van Cott, Riter & Farnsworth, of Salt Lake City, for appellant.

Hancock & Barnes, of Salt Lake City, for respondent.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ concur.

OPINION

FRICK, J.

The plaintiff recovered judgment in the district court of Salt Lake county against the defendant for damages for personal injury which she alleged was received through the negligence of the defendant in operating one of its suburban passenger trains at a street crossing in the town of Salem, Utah, which train collided with an automobile in which the plaintiff was riding at the time of the accident. The defendant appeals from the judgment.

The collision in question was considered by this court in the case of Shortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 P. 860, and in Montague v. Same, 52 Utah 368, 174 P. 871. In the opinion in the Shortino Case we appended a plat or sketch showing the railroad crossing and the surrounding objects, and we there made a full statement of the facts as to how and under what circumstances the collision occurred. The facts in this case, except in some particulars affecting the plaintiff's conduct, to which she shall refer specifically hereinafter, do not materially differ from the facts stated in the Shortino Case, and for that reason we shall omit a detailed statement of the facts here, referring the reader to the statement in that case. In the Shortino Case we reversed the judgment in his favor, and there held that Shortino, the plaintiff in that case, in driving or operating his automobile onto the railroad track in front of the oncoming train was guilty of negligence as matter of law and therefore could not recover although the defendant was also guilty of negligence in operating its train. In other words, we there held that Shortino's negligence was the proximate cause of the accident and consequent injury to himself. Upon the other hand, in the Montague Case, which arose out of the same collision, we held that, although Miss Montague, the plaintiff in that case, sat in the front seat of the automobile with Mr. Shortino, and in attempting to cross the railroad track was required to exercise ordinary care for her own safety, yet, in view of her youth, inexperience, and the surrounding circumstances, we were not authorized to say that she was guilty of contributory negligence as matter of law. In view, therefore, that the jury, under appropriate instructions, had found that she was not guilty of contributory negligence, we affirmed the judgment in her favor. It is now vigorously contended by the defendant that in view that the plaintiff in this case at the time of the accident was twenty years of age, it should be held that she was guilty of contributory negligence as matter of law, and hence that the judgment in her favor should be reversed.

This case was tried twice in the court below. On the first trial the court ruled out the franchise ordinance to which reference is made in the Shortino Case, and also withdrew from the jury the evidence relating to the defendant's failure to erect cross-arms or some suitable device at the crossing to indicate to those who were passing along the street that they were about to cross a railroad track. The jury returned a verdict for the defendant, upon which judgment was duly entered. The plaintiff, in due time, filed a motion for new trial. While that motion was pending the trial of the Shortino Case came on, in which the trial court reconsidered and reversed its rulings with respect to the exclusion of the franchise ordinance and the evidence relating to defendant's failure to erect cross-arms and permitted the proffered evidence to go to the jury. The jury returned a verdict in favor of Shortino, and the defendant appealed the case to this court. Two of the errors assigned on that appeal related to the admission in evidence of the franchise ordinance and the evidence respecting defendant's failure to erect cross-arms at the railroad crossing. In view that those two questions were about to be presented to this court on that appeal the ruling on plaintiff's motion for new trial was, by agreement, held in abeyance by the court until this court had passed upon the alleged errors in admitting the franchise ordinance and the evidence respecting defendant's failure to erect cross-arms. This court, in the Shortino Case, held that, inasmuch as it appeared from the evidence in that case that the defendant had accepted the provisions of the franchise ordinance, one of which was that the speed of its trains was limited to twelve miles an hour, and that it was operating its railroad through the town of Salem pursuant to those provisions, the ordinance was properly admitted in evidence upon the question of excessive speed. We also held that in view that the plaintiff had alleged the defendant's failure to erect cross-arms or some other suitable device to indicate the presence of the crossing as constituting negligence, the court did not err in admitting that evidence. It will thus be seen that according to the rulings of this court in the Shortino Case the trial court had erred in excluding the franchise ordinance and in withdrawing from the jury the evidence relating to the failure to erect cross-arms. After that ruling was brought to the attention of the trial court it sustained plaintiff's motion for new trial, and the case was tried the second time. On the second trial the franchise ordinance and its acceptance were admitted without objection, and the evidence relating to defendant's failure to erect cross-arms was also submitted. After plaintiff's evidence was all in, and after she had rested her case, the defendant proved that it had not accepted the franchise ordinance, and had not operated, and was not operating, its trains pursuant to its provisions, for the reason that in the ordinance it was provided that unless the railroad were constructed within a specified time the ordinance should lapse, it being shown that the railroad was not constructed within the time specified. Defendant also proved that the railroad was thereafter constructed and was being operated under the statutes of this state, and not pursuant to the provisions of the ordinance. This evidence was not disputed by the plaintiff, and hence the trial court withdrew the franchise ordinance from the consideration of the jury, but submitted for their consideration the evidence relating to the failure to erect cross-arms.--The jury on the second trial returned a verdict for the plaintiff, upon which judgment was duly entered. The defendant, in due time, filed its motion for new trial, which was denied. Hence this appeal. One of the errors assigned and argued is that the trial court erred in denying its motion for a new trial because the evidence is insufficient to sustain the verdict and judgment.

It is strenuously argued that in view that the evidence is without dispute that the defendant did not operate its trains pursuant to the franchise ordinance, and that for that reason the evidence on the second trial was the same as on the first one, with the exception of its failure to erect cross-arms, and that that evidence, according to the ruling of this court, in view of Shortino's negligent conduct, was held to be of no effect, therefore, there was no evidence in support of the finding of negligence on the part of defendant. In making that contention defendant's counsel overlook the fact that the evidence is clear that the defendant operated its train at from thirty to thirty-five miles an hour in approaching the crossing, which was near, if not in, the heart of the town, and only a few hundred feet from the station. Entirely apart, therefore, from the speed limit fixed in the franchise ordinance there was, to say the least, some substantial evidence that the train was operated at an excessive rate of speed, and it was for the jury to say whether the rate of speed under the circumstances constituted negligence or not. The mere fact that the jury on the first trial arrived at the contrary conclusion, if that was the case, is by no means conclusive that there was no substantial evidence of negligence in operating the train at an excessive rate of speed. One jury might find one way, and its findings could not be assailed, while another jury might arrive at the contrary conclusion and its finding likewise be unassailable as matter of law. So long as there was some substantial evidence upon which to base a finding of negligence the court had no right to withdraw the case from the jury nor to set aside its verdict upon the ground that it was not supported by sufficient evidence.

There are, however, other reasons why the court did not err in granting the motion for new trial. It will be observed that in the Shortino Case it was conceded that the franchise ordinance was accepted by the defendant. The decision of this court was therefore based upon its acceptance, and the ruling of the trial court in granting plaintiff's motion for new trial was based upon that decision. The evidence that the defendant did not operate its trains pursuant to the franchise ordinance was not produced, and apparently not known to either the court or plaintiff or her counsel, until after the motion for new trial had been granted and the case was being tried the second time, as before stated. One of the reasons now urged why the trial court erred in denying defendant's motion for new trial in this case is...