Cromeenes v. San Pedro, Los Angeles & Salt Lake Railroad Co.

• Decision Date: 04 May 1910
• Docket Number: 2044
• Parties: CROMEENES v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY
• Court: Utah Supreme Court

109 P. 10

37 Utah 475

CROMEENES v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY

No. 2044

Supreme Court of Utah

May 4, 1910

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by J. W. Cromeenes against the San Pedro, Los Angeles & Salt Lake Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Pennel Cherrington for appellant.

APPELLANT'S POINTS.

The appellant's claim is that all the rulings of the trial court on the question of contributory negligence were wrong for the reason that the deceased should have been held guilty of contributory negligence as a matter of law. (Gesas v O. S. L. R. R. Co., 33 Utah 156, 93 P. 274; Cleveland, etc., R. R. Co. v. Tartt, 64 F. 831; Krenzer v. Pittsburg, etc., R. R., 68 Amer. State Reps. 252; Wendell v. N.Y. Central, etc., R. R. Co., 91 N.Y. 420; C. B. & Q. v. Laughlin, 87 P. 749; Gehring v. Atlantic City Ry., 14 L. R. A. [N. S.] 312; Reynolds v. N.Y. Central, etc., R. R. Co., 58 N.Y. 248; Tucker v N.Y. Central, etc., R. R. Co., 21 Amer. St. Rep. 670; Ecliff v. W. St. L. & P. R. R. Co., 64 Mich. 196; Masser v. C., R. I. & P. R. C. Co., 68 Iowa 602.) It would seem that the question asked by McHugh and the alleged silence of the engineer were admitted in evidence as a part of the res gestae. We have seen no text book or court decision giving a definition of res gestae that this evidence will fit. The question was asked subsequent to the killing of the boy; it did not elucidate that act in any way; did not explain it; did not describe it; did not qualify it; was no part of the act, nor was the act a part of it--it was merely the expression of the opinion of McHugh concerning the accident, expressed after the accident had happened, and was incompetent and immaterial as original testimony, since certainly the witness McHugh on the stand would not have been allowed to say that the engineer "did a damn fine job." The trial court knew that it was only an opinion, though it admitted the evidence. (Enc. of Evidence, 342; 16 Cyc., par. 2, p. 1148; Kuperschmidt v. Metropolitan St. Ry. Co., 94 N.Y.S. 17; Indianapolis St. Ry. Co. v. Whitaker, 160 Ind. 125; Indianapolis St. Ry. Co. v. Taylor, 164 Ind. 155; Leach v. O. S. L. R. R. Co., 29 Utah 285; 2 Jones on Evidence, sec. 361; Am. and Eng. Ency. of Law, 666, 94 Ala. 9; Butler v. M. R. Co., 143 N.Y. 417; Luby v. H. R. Co., 17 N.Y. 131; Ganaway v. Salt Lake Dramatic Association, 17 Utah 37; Missouri P. Ry. v. Ivy, 9 S.W. 346 [Tex. Supreme Court]; Dwyer v. Continental Insurance Co., 63 Tex. 354; Goso v. Southern Ry. Co., 45 S.E. 810; Welkins v. Farrell, 30 S.W. 450 [Texas Civil Appeals]; Blackman v. West Jersey, etc., 52 Atlantic, 370; Citizen's Street Railway Co. v. Howard, 52 S.W. 865; Redmond v. Metrop. Street Railway Co., 84 S.W. 26; Norris v. Interurban Street Railway Co., 90 N.Y.S. 460; Dompier v. Lewis, 91 N.W. 152; Butler v. Railway Co., 143 N.Y. 417; Chicago Street Railway v. White, 110 Ill.App. 23; Koenig v. Union Depot, 73 S.W. 637; Silveira v. Iverson, 60 P. 687; Lane v. Bryant, 9 Gray, 245; State v. Ramsey, 48 La. Ann. 1407; Travelers' Insurance Co. v. Shepard, 85 Ga. 751; Richmond & D. R. Co. v. Hammond, 93 Ala. 181; Hughes v. L. & N. R. Co., 104 Ky. 774; Carr v. State, 76 Ga. 592; Beck v. State, 76 Ga. 452; Scott v. St. Louis, etc., Ry. Co., 112; Iowa, 54; Dunn v. C., R. I. & P. Ry. Co., 130 Iowa 580.)

Powers & Marioneaux and J. W. McKinney for respondent.

RESPONDENT'S POINTS.

With respect to a street railroad, the mere fact that a person attempts to cross it when a car is seen to be approaching does not of itself constitute negligence, . . . ordinarily, whether or not he was negligent in attempting to cross, under the circumstances of the case, is a question for the jury. (Spiking v. Con. Ry. & P. Co., 33 Utah 313, 93 Pac., pp. 840-841.) The boy had the right to assume that the cars would be run with ordinary care on the public street. (Fult v. Wyckoff, 25 Ind. 321; Parrott v. Barney, F. cases, No. 10773, 82 U.S. [15 Wallace], 524; Newson v. N.Y. Cent. R. R., 26 N.Y. 383; Snyder v. Pittsburgh, etc., Ry. Co., 11 W.Va. 14.) It has become a settled rule of law in this state that the child is not negligent if he exercised that degree of care which under like circumstances would be expected of one of his years and capacity. And whether he uses such care in any given case is a question to be left for the jury to decide. (Anderson v. R. R., 81 Mo.App. 116; Riley v. Railroad, 68 Mo.App. 652; Burger v. R. R., 112 Mo. 249, 20 S.W. 439, 34 Am. St. Rep. 379; Anderson v. R. R., 161 Mo. 1411, 61 S.W. 874.)

McCARTY, J. STRAUP, C. J., FRICK, J., concurring in the result. McCARTY, J., dissenting in part.

OPINION

McCARTY, J.

This action was brought to recover damages for the death of plaintiff's son, who was run over and killed by a train of the defendant on Third West Street, in Salt Lake City, Utah, on May 22, 1907. The negligence alleged by plaintiff consisted in the failure of defendant to ring the bell on its locomotive in accordance with an ordinance of the city then in existence; to give any warning of the approach of the locomotive, which was being run at a high and dangerous rate of speed; and to keep a sufficient lookout for pedestrians. Defendant, in its answer, denied all the acts of negligence set out in the complaint, and further alleged that that the death of the deceased was due to his own negligence in suddenly and unexpectedly stepping upon the railroad track of the defendant immediately in front of the engine by which he was killed, and so close thereto that the defendant's employees thereon had no opportunity to stop the same before striking him, although the deceased, had he looked for the approaching train, had a clear and unobstructed view thereof. The case was tried to a jury, who returned a verdict for plaintiff and assessed his damages at $ 4000. To reverse the judgment rendered on the verdict, defendant prosecutes this appeal.

The accident complained of occurred on Third West Street a short distance south of the intersection of said street with Sixth South Street, in Salt Lake City. It is admitted that "both sides of the street, in the vicinity of the accident, were thickly populated with adults and children." At the time of the accident, which was about five o'clock in the afternoon, two freight trains were being operated on Third West Street. One, an Oregon Short Line train, was being run north on the west track, and the other train consisting of an engine and caboose, which belonged to the defendant, was being run south on the east track; there being two parallel tracks on said street. The distance between the tracks was about eight feet. Plaintiff and his family, including the deceased, were living and for a period of about eighteen or twenty months prior to the accident had lived, on the west side of Third West Street, near where the accident occurred, during which time several regular trains passed daily over the railroad tracks mentioned. Shortly before the accident, the deceased, who was a bright, intelligent boy, twelve years of age, left his home and went over to a grocery store on the east side of the street. As he was returning to his home, the Oregon Short Line train came up from the south on the west track and he stopped in the street east of the west track and about ninety or one hundred feet south of the south line of Sixth South Street watching the train from the south and evidently waiting for it to pass. While the deceased was thus standing and waiting for the Oregon Short Line train to pass on to the north, he was struck by defendant's train, which was coming from the north on the east track. There is a conflict in the evidence as to the exact location of the deceased with reference to the railroad tracks when he was struck by defendant's engine.

The only witness who saw the deceased struck was George McHugh, a switchman for the Oregon Short Line company, who, at the time of the accident, was on the train going north, which train consisted of an engine and fifteen freight cars. McHugh was on the third car from the rear of the train. When this car was at Seventh South Street, McHugh saw the other train coming south on the east track, and he testified that he saw the boy at about the same time as he did the train; that the boy was crossing the street to the west; that when he got between the two tracks he stopped near the west rail of the east track; that on observing the boy he began signaling with his hands to the operatives of the train coming from the north on the east track; that he also tried to attack the attention of the boy at the same time; that it seemed that he "attracted the attention of the men on the train from the north as they slowed up; they came pretty near to a standstill, but they hit the boy;" that after striking the boy the train passed on until the rear end thereof was opposite or near where the boy was lying after being killed. Counsel for appellant have, in their brief invited attention to some expressions in the testimony of this witness, which, standing alone, would seem to indicate that the deceased was standing between the rails of the east track when he was struck by the train. By an examination of the testimony of the witness, as the same appears in the bill of exceptions, it will be seen that his attention, while testifying, was called to some kind of a diagram or map that was sketched or drawn on a blackboard representing the street and railroad track at the point and in the vicinity of where the accident happened, and at times he became very much confused and did not seem to understand which direction was east and which was west on the map. The apparent discrepancy in his testimony as to where the deceased...