Crosman v. Southern Pac. Co.

• Decision Date: 01 June 1918
• Docket Number: 2267.
• Citation: 173 P. 223,42 Nev. 92
• Parties: CROSMAN v. SOUTHERN PAC. CO. [*]
• Court: Nevada Supreme Court

173 P. 223

42 Nev. 92

CROSMAN v. SOUTHERN PAC. CO. ^[*]

No. 2267.

Supreme Court of Nevada

June 1, 1918

Appeal from District Court, Washoe County; Mark R. Averill, Judge.

Action by Fred Crosman against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

The Southern Pacific Company, a railway corporation, has appealed to this court from a judgment in the sum of $25,000, the amount assessed against it by the verdict of a jury as compensation for personal injuries alleged to have been sustained by plaintiff in consequence of the alleged negligence of the defendant company. At the proper stage in the trial the defendant moved for a non-suit and a directed verdict. Both motions were denied. Upon the request of counsel for the parties the court submitted to the jury 37 special interrogatories, 35 of which were answered, returned and filed with the verdict. The defendant moved for judgment upon the special findings, notwithstanding the general verdict in plaintiff's favor, and also moved for a new trial, which motions were denied.

The uncontradicted facts are that long prior to the date of the injuries complained of the Southern Pacific Company operated and maintained between its stations, Truckee, Cal., and Sparks, Nev., a double main line track; that prior to and at the time of the accident and injuries to the plaintiff, there was in vogue between these points what is called the left-hand traffic movement; that is to say, all trains operated between these points moved upon the left-hand track. The Postal Telegraph Cable Company, long prior to the injuries, owned and operated telegraph lines extended along the right of way of the Southern Pacific Company between its stations referred to in this statement. The railroad company at the request of the telegraph company, granted permission to allow its employés engaged in repair and maintenance service to operate upon its tracks velocipede cars at their discretion, in the course of their employment, between Sparks and Wells, Nev. This arrangement is evidenced by a written agreement, dated the 31st day of January, 1911, which, among other things, provided that said employés might use such cars at their sole risk as gratuitous licensees, and the railroad company should owe them no duty, nor be liable for injuries sustained by them, whether arising from negligence or otherwise, and the postal company should indemnify and hold harmless the railroad company on account of any injuries to any employé while so engaged in operating such cars between Sparks and Wells. The injuries complained of were received at a point on defendant's road between Sparks and Reno. The city of Reno is an intermediate station between Truckee and Sparks, situate about three miles west of Sparks. Sparks is a division point that marks the western limit of the Salt Lake division and the eastern limit of the Sacramento division. Wells is a station situate several hundred miles east of Sparks. The Sparks and Reno yards overlap, but for a distance of about three-quarters of a mile between these points there are but two main line tracks. Long prior to the injuries complained of the defendant employed a switch engine equipped with headlights on front and rear, in its Reno yards. The engine was housed at Sparks, and customarily left the latter place in the early hours of the morning to do its work in the Reno yards. When its work was completed it necessarily moved backward to Sparks pulling such cars as were required to be transferred from Reno to the Sparks yards.

Crosman the plaintiff, was employed by the telegraph company, on or about July 1, 1911, as a lineman, whose duty it was to assist in the maintenance of his employer's lines as far east as Lovelock, Nev., and as far west as Floriston, Cal. At the time of his employment the telegraph company operated a velocipede car upon the tracks of the defendant company out of Reno. Crosman resided in Reno, and from the date of his employment operated a velocipede car out of Reno up to the date of his injuries without protest or objection on the part of the defendant's officers, agents, or employés, except as here now stated: An accident occurred on the line of the defendant company some time in September, 1911, which was attributed to the use of the velocipede cars by the employés of the telegraph company upon defendant's tracks after dark without a light. This led the company to revoke or modify its permission theretofore given the telegraph company, to the extent of prohibiting the use of its tracks on the Salt Lake division after dark. Pursuant to an order of the defendant company, the telegraph company, by telegram and letter dated September 25, 1911, instructed Crosman not to use the motorcar upon defendant's tracks after dark under any circumstances. In this letter he was requested to advise if the instructions contained were clearly and definitely understood. Crosman wrote the company on October 4, 1911, as follows:

"In acknowledgment of your letter of September 25th, in regard to running of cars after dark, I wish to state I thoroughly understand the meaning of that instruction."

In so far as it appears from the record, the plaintiff at no time attempted to operate a velocipede car upon defendant's track after dark up to the date of his injuries. On February 14, 1912, the telegraph company inclosed to Crosman in a letter a copy of its agreement herein referred to with the defendant company. In the letter Crosman was requested to carry the permit with him while using the car to show his authority so to do when challenged. On the 18th day of February, 1914, Crosman, together with a coemployé, while proceeding in a westerly direction upon a velocipede car, at a speed of about 10 or 15 miles per hour, between Sparks and Reno, after dark, between the hours of 6:30 and 7 p. m., at a point about 400 yards west of the Sparks ticket office on the Salt Lake division, was run into by a switch engine moving backward in an easterly direction on the left-hand track of the main line track, which was returning from Reno to Sparks drawing a train of 20 cars to be distributed in the Sparks yards. The velocipede car weighed approximately 400 pounds, and was propelled by a 2-cylinder gas engine. Crosman operated the car, and his companion sat immediately in front of him on a narrow running board. The evidence tends to show that at about the time the engine crew had completed their labors and were ready to return to Sparks, it was discovered that the rear headlight on the tender of the engine was out of commission. A lantern was placed on the bumper beam which extended across the length of the tank about four feet above the track. The reflection of this lighted lantern would not enable the engineer or fireman to see any character of obstruction upon the track, but such light could be seen for approximately a distance of one-half mile on a straight track. The engine was drifting along without steam at a speed of 10 or 12 miles per hour at the place of the collision. The regulation signals were given from time to time en route. The engineer testified, in substance and to the effect, that he had no reason to anticipate that there would be a gasoline car on the left-hand track on going to Sparks that night; that he had no knowledge of the presence of the car upon the left-hand track until about the time of the collision; that he thought he had a clear track in front of him when he started his engine upon the left-hand track for Sparks.

The plaintiff and his companion testified, in substance and to the effect, that at the time of the collision there was no light on the engine; that they had no knowledge of its approach, and that just before the impact the plaintiff's companion yelled, "There is something on the track just ahead of us," and he jumped and escaped injury. The plaintiff stated:

"I was not thinking just exactly of the switch engine; I was looking for any train, but was expecting them to come with a headlight or a light, and there was no light whatever."

The night was dark, cold, and the wind was blowing from the west. The plaintiff's companion sat with his hat drawn down and his coat collar turned up to protect him from the elements. The plaintiff endeavored to extricate himself from his position in operating the car, but could not do so in time to clear himself from danger. His car was caught beneath the running board extending along the side of the engine. It appears that when in operation this velocipede car made more noise than an automobile or motorcycle with their mufflers open, and the noise of the approaching engine could not be heard. Crosman, as the result of the collision, was desperately injured.

The averments of the complaint are to the effect that Crosman operated the car between Sparks and Wells in virtue of the agreement between the said companies, and operated the car between Reno and Sparks with the knowledge, consent, and permission of the railroad company.

The defendant by its answer set up, among other defenses, that Crosman, prior to his injuries, was forbidden the use of defendant's tracks after dark, and was where he had no right to be at the time of receiving his alleged injuries. In reply the plaintiff alleges, in substance, that he was at the time of his injuries in the line of his duty, and engaged in making repairs to certain of the wires of the telegraph company at or near Gilpin (east of Sparks), and had completed his work and started on his return journey in time to reach Reno before dark, but while within the station and yard limits of Sparks, and near the Sparks station, it became necessary to make certain repairs to the velocipede car, so that the time required to make such...