Davis v. Denver & Rio Grande R. Co.

• Decision Date: 21 July 1914
• Docket Number: 2608
• Citation: Davis v. Denver & Rio Grande R. Co., 142 P. 705, 45 Utah 1 (Utah 1914)
• Parties: DAVIS v. DENVER & RIO GRANDE R. CO
• Court: Utah Supreme Court

142 P. 705

45 Utah 1

DAVIS v. DENVER & RIO GRANDE R. CO

No. 2608

Supreme Court of Utah

July 21, 1914

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Action by Elijah Davis, as administrator of the estate of Leonard Davis, deceased, against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff.Defendant appeals.

AFFIRMED.

Van Cott, Allison & Riter for appellant.

A. C Hatch and A. L. Hoppaugh for respondent.

FRICKJ. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action was brought by the father as administrator to recover damages for the death of his son Leonard Davis, which, it is alleged, was caused through the negligence of appellant.

The facts shown by respondent's evidence, in substance, are as follows: On December 2, 1912, the deceased was employed by the Utah Copper Company at Bingham Canyon, Utah.That company then owned and was operating a machine shop which was located in what is called Bingham Canyon, and the appellant owned and operated a railroad consisting of several tracks near and along said machine shop.The Utah Copper Company also owned and operated several railroad tracks, some of which were used in taking engines to and from the shop.The foregoing railroad tracks, it appears, were laid along a rather steep hillside, so that on the one side of the tracks was a steep ascent or bluff, while on the other was a somewhat abrupt and precipitous decline into the canyon below.The ground, however, where the tracks were laid was made level.When snow fell which, in the winter season, was somewhat frequent, it was shoveled from the tracks and piled up along the sides thereof.It was the duty of the deceased on the night in question to keep alive several, what were called, small dinkey engines by supplying them with coal so as to keep the fires going to prevent freezing.The engines, on the night in question, were standing upon the Utah Copper Company tracks, and about one hundred feet distant from the machine shop, and the deceased was required to walk that distance in the performance of his duties as aforesaid in going from the machine shop to the engines.When he had fired up the engines it was his duty to report to his superior, who was in the machine shop, and from him receive further orders.The night in question was very dark, and the atmosphere in the canyon surrounding the machine shop was also filled with smoke from the numerous engines operating in the vicinity, and the weather was quite cloudy.Between seven-thirty and seven-forty-five on the evening aforesaid one Whitehead, a witness for respondent, saw the deceased step down from one of the dinkey engines, and after doing so saw him walk towards the tracks of the appellant carrying a lighted lantern.When the deceased had reached the tracks he stopped a moment, then stepped onto the track and walked thereon towards the machine shop.The witness then turned his head a moment, after which he again looked in the direction where he last saw the deceased, and at that moment saw his lantern fly into the air, and also saw for the first time a train of cars passing on the track the deceased was walking on.The witness said that the night was so dark that when he saw the deceased leave the dinkey engine and walk towards and on the track he could not see his body, but by the light reflected from the lantern he could discern that his legs were moving, and that he knew it was a man.The witness did not know that it was the deceased when he saw him go upon the track, but after he had been run over and killed by the train, he saw who it was.The train which ran over the deceased was owned and operated by appellant.It consisted of about fourteen cars of the gondola type, and the cars were being pushed backwards.The train, in approaching where the deceased was killed, had passed over a high bridge, which was about 700 feet distant from where the accident occurred.There were no lights on the rear end of the train, nor was there any one keeping a lookout.The witness Whitehead was standing only a few feet from the machine shop, and near where the train was being operated, but he did not see it, nor did he hear the sound of a whistle or bell, nor did he hear any noise of the train approaching.Other witnesses who were in the vicinity where they could have heard the whistle and bell also testified that they heard neither, but neither Mr. Whitehead nor the other witnesses were willing to swear or state positively that the whistle or bell may not have been sounded by the train in approaching the place where the accident occurred.The testimony also showed that the track on which the deceased walked at the time was almost constantly used both day and night by a large number of the employes of the Utah Copper Company in going to and coming from the machine shop, and that it was also used by others, and that such had been the custom at the time of and for a long time before the accident; that the night was so dark that one could not see an approaching train or cars without a headlight for more than "twenty to thirty" feet.One witness said that one with a lighted lantern could not see cars approaching for a distance greater than ten feet because the rays of the lantern would blind the one who carried it and increase the gloom in the distance.A locomotive engineer also testified that there were a number of engines that were almost constantly whistling and making noises in the vicinity of the machine shop.In speaking of those engines he said:

"When they come down here and couple onto a string of cars and get a signal, and they whistle in answer to the signal and go on up the hill; then they come down to the yard; they whistle again for the yard.A man that wasn't a railroad man or well acquainted with the position of the different engines in the yard might get confused with regard to those whistles; a whistle here, a whistle there, a whistle over on the hill where the engineers is working, it would be hard for him to tell which engine was whistling unless he was a railroad man--then possibly he could figure it out."

There was also testimony to the effect that on the night in question the snow had been shoveled off the tracks and "piled up" along the sides thereof.One witness said:

"There was irons piled between the tracks so it would prevent them (the pedestrians) from walking there (between the tracks) without having to walk on the tracks because there was big irons of all kinds that occupied practically all that ground."

It also appeared that there were no lights outside of the machine shop on the night in question; that the men were working on some boilers in the shop, and in hammering the iron or steel plates made considerable noise; that there were also hissing noises caused by escaping steam from the engines in the vicinity of the machine shop.There was also evidence to the effect that in going from the machine shop to the dinkey engines and in coming back to the shop again the only practical way open for the deceased was to walk on the track where he was killed.

Upon the part of appellant there was much evidence, some of which was in direct conflict with the statements here outlined.The jury were, however, the sole judges of the facts and of the credibility of the witnesses, and hence it could subserve no purpose whatever for us to set forth any of the evidence produced on behalf of the appellant.

When both sides had rested appellant moved for a directed verdict "on the ground that the deceased was himself guilty of negligence as matter of law," in the particulars specified in the motion.In referring to the question raised by the motion, counsel, in their printed brief and argument, say:

"Among other things we claimed that the deceased was himself guilty of negligence as a matter of law in failing to look and listen for approaching cars.In this connection we desire to call attention to the following cases, where the courts held that the deceased or injured party was guilty of negligence as a matter of law in failing to ascertain the approach of trains."

In support of the foregoing statement counsel cite no fewer than fifty-two cases decided by various state and federal courts.We shall not pause here to review those cases, or any of them.It must suffice to say that many of them refer to accidents occurring on public crossings, and those come directly within the doctrine announced by us in Wilkinson v. Railroad, 35 Utah 110; 99 P. 466;Bates v. Railroad, 38 Utah 568, 114 P. 527, andRogers v. Railroad, 32 Utah 367; 90 P. 1075;125 Am. St. Rep. 876.Others of the cited cases come within the principles which controlled the decision in Pratt v. Light & Ry. Co., 38 Utah 500; 113 P. 1032.Further, a number of the cases cited come within the rule that, ordinarily, at least, it constitutes negligence per se for a person who is walking along or between railroad tracks in a safe place to leave said safe place and, without cause therefor, go onto the track and walk thereon when he knows that a train or cars may pass over such track most any time.The case of Birrell v. Great, etc., Ry. Co., 61 Wash. 336; 112 P. 362;Ann. Cas. 1912B, 1239, decided by the Supreme Court of Washington and cited by counsel, is a case where the doctrine last referred to is illustrated and applied.Neary v. Northern P. Ry. Co., 37 Mont. 461; 97 P. 944;19 L. R. A. (N. S.) 446, andTunnison v. Chicago, M. & St. P. Ry. Co., 150 Wis. 496; 137 N.W. 781, also cited by counsel, are like the Birrell case.None, however, of the cases cited by counsel is, in our judgment, parallel to the case at bar.True, there are general expressions in many of the cases that a railroad when in use for the passing of trains is...