Dickert v. Salt Lake City Railroad Co.

• Decision Date: 04 November 1899
• Citation: 20 Utah 394,59 P. 95
• Court: Utah Supreme Court
• Parties: LORENZ DICKERT, PLAINTIFF AND APPELLANT v. SALT LAKE CITY RAILROAD COMPANY, DEFENDANT AND RESPONDENT

59 P. 95

20 Utah 394

LORENZ DICKERT, PLAINTIFF AND APPELLANT v. SALT LAKE CITY RAILROAD COMPANY, DEFENDANT AND RESPONDENT

Supreme Court of Utah

November 4, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action by plaintiff to recover for injuries sustained by his wife while she was a passenger on a street car of the defendant company.

From a judgment for defendant, plaintiff appealed.

Reversed and remanded.

Messrs C. F. & F. C. Loofbourow, for appellant.

On degree of care required of common carrier appellant cited Story on Bailments (8th Ed.) Sec. 601; Shearman and Redfield on Negligence (2d Ed.) Sec. 266; Jamison v. Ry. Co., 55 Cal. 593; Hegeman v. Ry. Co., 13 N.Y. 9; Maverick v. Eighth Ave. R. R. Co., 36 N.Y. 378; Coddington v. R. R. Co., 102 N.Y. 66; Ingalls v. Bills, 9 Metcalf 1; Pershing v. C. B. & Q. Ry. Co., 71 Iowa 561; Meier v. Pa. Ry. Co., 64 Pa. 225; Shoemaker v. Kingsbury, 12 Wall. 376; Ry. Co. v. Horst, 9 U.S. 291.

The manner in which the defendant usually conducted its business or in which it started its cars on other occasions could have no bearing on the question whether it was guilty of negligence on the occasion under inquiry. Hodges v. Breese, 129 III. 87; Wright v. Boller, 44 Hun. (N.Y.) 77; Woostec v. Ry. Co., 72 Hun. (N.Y.) 197; Maguire v. Ry. Co., 115 Mass. 239; Whitney v. Gross, 140 Mass. 232; Hays v. Millar, 77 Pa. 238; Eppendorf v. Ry. Co., 69 N.Y. 195.

Messrs. Pierce, Critchlow & Barrette, for respondent.

Appellant's position is that the word "reasonable" as used by the court in this instance means "unreasonable," or something less than reasonable or something more than reasonable. In other words, by some strange freak of language "reasonable" and "unreasonable" have come to be equivalent terms.

The process by which this result is reached is curious. It is by assuming that the word "reasonable" is in all cases equivalent to "ordinary" or "low degree" or "slight," and by making the further assumption that under all circumstances and under all conditions the duty of the common carrier toward its passengers is the exercise of the very highest degree of care that human skill and foresight is capable of. Both these propositions are unsound. A consideration of the following cases demonstrates the fallacy of appellant's argument: Ernst v. Hudson R. Ry. Co., 35 N.Y. 927; Dygert v. Bardley, 8 Send. 469; Brown v. Kendall, 6 Cush. 292; Philadelphia Ry. Co. v. Spearan, 47 Pa. 300; Wolf v. American Express Co., 43 Mo. 421; Brotherton v. Manhattan B. Imp. Co., 33 L.R.A. 598; Laufer v. Bridgeport Traction Co., 33 L.R.A. 533; New Orleans, etc. Ry. Co. v. McEwen, 38 L.R.A. 134; Saunders v. Southern P. Co., 13 Utah 291; Thompson v. Salt Lake R. T. Co., 16 Utah 289.

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

OPINION

BASKIN, J.

This is an action in which the plaintiff, who is the appellant, seeks to recover for injuries sustained by his wife, while she was a passenger on a street car of the defendant.

The complaint, among other matters not necessary to notice, alleges, "That after the said Anna Dickert had so entered into said car, and while she was walking from the entrance door thereof to a seat in the said car, and before she had time to take her seat or reach a place of safety, and before she had sat down in said car, the defendant, suddenly and without any warning, and recklessly, carelessly and negligently, started said car, and put the same in motion with a sudden and violent jerk, and thereby, and without any negligence on the part of said Anna Dickert, threw and prostrated the said Anna Dickert violently and with great force upon the floor of said car, whereby her right arm was broken in such a way that she was permanently injured and lost the use of her right arm and hand permanently and for the remainder of her life, and was otherwise greatly injured and disabled in body."

The answer denies the alleged negligence, and alleges contributory negligence on the part of plaintiff's wife. The jury found for the defendant, and final judgment was rendered against the plaintiff. The motion of plaintiff for a new trial having been overruled, he appealed to this court. Exceptions were duly taken to and error assigned upon the following instructions:

"4th. Although, as a general rule, a street car company is not liable for injuries caused by the starting of its cars, yet it may be liable where the method or manner is unusual and dangerous to passengers. If, when Mrs. Dickert entered the car in question, she exercised reasonable and ordinary care for her own safety, and proceeded as expeditiously as she could, under all the circumstances, toward a seat, and if before she became seated, the car was started with a sudden, unusual and violent jerk sufficient to throw her to the floor of the car, and which did throw her down while she was exercising ordinary care for her own safety, and as a result of said fall was injured, as alleged in the complaint, then such acts of the defendant, through its agents or servants, would constitute negligence, and the defendant would be liable to the plaintiff for damages sustained by him, as a result of the fall of his wife, as explained in these instructions.

"6th. If you believe from the testimony that the employees of the defendant were negligent, either in starting the car before Mrs. Dickert had become seated, or in starting the car with a sudden, unusual or violent jerk, as explained in the preceding instruction; and if you further find that by reason of such negligence Mrs. Dickert was thrown to...