Dederichs v. Salt Lake City Ry. Co.

• Decision Date: 11 February 1896
• Docket Number: 644
• Court: Utah Supreme Court
• Parties: JOSEPH DEDERICHS, APPELLANT, v. THE SALT LAKE CITY RAILROAD CO., RESPONDENT

44 P. 649

13 Utah 34

JOSEPH DEDERICHS, APPELLANT, v. THE SALT LAKE CITY RAILROAD CO., RESPONDENT

No. 644

Supreme Court of Utah

February 11, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. S. A. Merritt, Judge.

Action by Joseph Dederichs against the Salt Lake City Railroad Company to recover damages for an injury caused by an electric car. From a judgment on motion for a nonsuit plaintiff appeals.

Reversed.

Richard B. Shepard, A. N. Cherry, and H. O. Shepard, for appellant.

Cited Riley v. Rapid Transit Co., 10 Utah 428; Booth's Street Railway Law § 359; Grand Trunk Railway Co. v Ives, 144 U.S. 408; Jeffs v. R. G. W. Ry. Co., 9 Utah 374; Smith v. R. G. W. Ry. Co., 9 Id. 141; Hicks v. Citizens' Ry. Co., 25 Lawyers' Repts. Ann., 508, Ann. case; Connelly v. Trenton Pas. Ry. Co., 44 Am. St. Repts. 424, and notes; Thoreson v. La Crosse Cy. Ry. Co., 41 Am. St. Repts. 64, and notes; Beach on Contributory Negligence, 2d Ed., § 462; Lyman v. Ry. Co., 114 Mass. 83; Ry. Co. v. Robinson, 127 Ill. 1; Shea v. Ry. Co., 44 Cal. 414; Adolph v. Ry. Co., 76 N.Y. A. 530; Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553; New Orleans & N. E. R. Co. v. Thomas, 60 F. 379.

Even where the evidence is conflicting, the question of negligence is for the jury. Baltimore Traction Co. v. Appel, 31 At. Rep. (Md.) 964.

The burden of establishing contributory negligence is on the defendant. Baltimore Trac. Co. v. Appel, Supra; U. P. Ry. Co. v. Novak, 61 F. 574.

Rawlins & Critchlow, for respondent.

The ruling of the lower court was clearly right as a matter of law. Railroad Co. v. Houston, 95 U.S. 697; Schofield v. Railroad Co., 114 U.S. 615; Elliott v. Railway Co., 150 U.S. 245; Booth on Street Railways, 312, 315, 317; Kelly v. Hendric, 26 Mich. 255; Davenport v. Brooklyn Ry. Co., 100 N.Y. 632; Fenton v. Sec. Av. St. Ry. Co., 126 N.Y. 625; 1 Thompson on Neg., 415, 416.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought to recover damages for personal injuries to appellant, claimed to have been occasioned by the respondent in negligently running its electric street cars in the city of Salt Lake. It appears, in substance, from the testimony of the plaintiff, that at about 5 or 6 o'clock in the afternoon, in October, 1891, he was driving a horse and wagon on Eighth East street in Salt Lake City, and had stopped to water his horse at a trough, situated about 40 feet north of the north line of Second South street, on Eighth East street, after which he moderately drove south on Eighth East street, and after crossing the sidewalk on the north side of Second South street, he saw a car coming west at a point about 300 feet east of the crossing. At this time he states, he thought he had plenty of time to cross the crossing. Trees obstructed his view until he had crossed the sidewalk. When his horse got to the railroad track the car was about 120 feet from the east crossing of Second South street. At this time he first noticed that the car was running rapidly. It was getting dark. That he then gave his horse a licking to get out of the way of the car. That before the car struck him, the motorman said: "Get out there." No bell was being rung, and no gong was being sounded. The car struck the hind wheels of his wagon, and broke them down on the south side of the track; his buggy was torn to pieces, one of his teeth knocked out, one of his ribs broken, and he was otherwise seriously injured. From these injuries he claims he has suffered ever since. That, prior to the accident, he was a strong, healthy man, about 42 years of age. That he paid $ 22 for repairing the buggy, $ 100 for medical services, and lost 1 1/2 months' time, worth $ 8 per day. That, at the time of the accident the car was running at an unusual rate of speed, at about 20 miles per hour. That he did not notice the speed of the car until he got on the track. The car was coming down grade, and he could not tell how fast it was running until his horse reached the track. After the car struck him it ran 80 feet west on Eighth East street, before it was stopped. The horse was gentle and accustomed to the cars. He could not state whether his horse walked or trotted when coming towards the track. That his horse's head was about 40 feet from the track when he first saw the car. That, if the car had been running at the usual rate of speed, he would have had plenty of time to cross safely. The rails were wet, and it was on down grade. Mr. Scoville, a witness for the plaintiff, testified in substance: That he was on the corner, and saw the collision. Saw two cars coming west, one behind the other, so close that it seemed that they were racing. At this time he saw plaintiff at the watering trough, going south. He was struck and his buggy injured, and he was thrown out by the collision, which occurred near the center of the street. The car ran 125 feet west of the point of collision before it stopped. Up to the time the horse went onto the track, no effort was made to stop the car. He struck the horse with his whip when it was on the track. At the time he got out his whip, the car was about 75 to 100 feet from the buggy. He says: "In my judgment, based upon observations, the car was running 20 miles an hour, and faster than the usual rate of speed. The motorman did not put on brakes, or try to stop the car, until the instant the collision occurred. He put on brakes when it was apparent that he would hit the buggy, but not before. Did not hear any bell rung or gong sounded." He says: "I don't think he could have checked his horse after it got on the track." Mr. Watrous, a passenger, testified in substance: Saw plaintiff driving towards the track, and close to it. Do not think the car stopped from the time it left Ft. Douglas. The car was going at a fast rate of speed. "In fact, it was going as fast as I ever saw a car go. It was going faster than any street car that I ever rode on. Saw the man on the track when the car was 75 or 100 feet away. The motorman did not try to stop the car until it was very close to the buggy. When the car stopped, it was 150 to 180 feet west of the west crossing of Eighth East street. I remarked on coming down from Ft. Douglas, that we were running very fast." Mr. Kelson, the conductor, testified in substance: "Saw a man approaching the track, within a few feet of it. I spoke to the motorman, and said, 'Look out Sam,' and the motorman looked back at me. When the man saw his danger, he struck the horse with his whip. Saw plaintiff when he drove on Second South street. The car was then 160 feet east on Eighth East street, and over 200 feet from the place of the collision when it was stopped. We were behind time, and made no stops from the fort. If a car was in good condition, and a dry rail, it ought to be stopped in very near its length. A motorman can wind up brakes in about two seconds. I didn't hear the bell ring. We were running faster than usual. I reported to the company that the bell rang, but as a matter of fact, it did not ring, as there was no bell to ring." The report of the accident made by this witness to the company was somewhat different from his testimony. It is shown that he left the employ of the company after the accident, and worked several days for the plaintiff. After the appellant rested his case, respondent's counsel moved for a judgment of nonsuit, on the ground (1) that the evidence fails to show that the defendant's agents, in charge of the car, were guilty of negligence which was the proximate cause of the injury; (2) that plaintiff was guilty of contributory negligence...