Edgar v. Rio Grande Western Ry. Co.

• Decision Date: 05 June 1907
• Docket Number: 1789
• Court: Utah Supreme Court
• Parties: EDGAR et al. v. RIO GRANDE WESTERN RY. CO

90 P. 745

32 Utah 330

EDGAR et al. v. RIO GRANDE WESTERN RY. CO

No. 1789

Supreme Court of Utah

June 5, 1907

APPEAL from District Court, Third District; George G. Armstrong Judge.

Action by Jennie Edgar and others against the Rio Grande Western Railway Company. From a judgment for defendant, plaintiffs appeal.

AFFIRMED.

Warner & Davis for appellants.

APPELLANT'S POINTS.

If the facts proven are such that reasonable men may fairly differ as to whether or not there was negligence, the question is one for the jury to consider. In support of this rule we cite the following. Lowe v. Salt Lake City, 13 Utah 98; Reese v. Morgan S. M. Co., 15 Utah 460; Pool v Southern Pacific Co., 20 Utah 214; Peck v Railroad, 25 Utah 32; Whitney Mnfg. Co. v. Railroad, 37 Am. St. 771.

"When an injury is the combined result of the negligence of the defendant and an accident for which neither the plaintiff nor the defendant is responsible, the defendant must pay damages, unless the injury would have happened if the defendant had not been negligent." In support of this we cite the following: 7 Amer. & Eng. Ency. Law (1 Ed.), p. 828; Town v. Railroad, 47 N.W. 665; Railroad v. Wymant, supra; 2 Thomp., Neg., p. 1085, sec. 3. 1st Ed. 16 Amer. & Eng. Encv. Law (1 Ed.), pp. 440-441; Carterville v. Cook, 129 Ill. --; Palmer v. Inhabitants of Andover, 2 Cush, 600; Railroad v. House, 50 N.E. 151; 24 Am. St. 756, 760.)

To hold a master responsible for the death of a servant there must be some substantive proof of negligence. Mere surmise, conjecture, or speculation will not take the place of such proof. (1 Shear. & Redf., Neg., sec. 57; Shaw v. Gold Mines Co., 77 P. 516; Dobbins v. Brown, 118 N.Y. 188; Deserant v. Coal R. Co., 55 P. 290; Traux v. Railroad, 94 N.W. 442; Neal v. Railroad, 105 N.W. 199; Reynolds v. Fibre Co., 59 A. 615; 2 Labatt, Mast. & Serv., sec. 837; Savitz v. Railroad, 48 A. 988; Stratton v. Lumber Co., 81 P. 833; Laidlaw v. Sage, 158 N.Y. 73.)

Where the evidence is equally consistent with the absence as with the existence of negligence no recovery can be had. (Fritz v. Electric Light Co., 18 Utah 493; Baulic v. Railroad, 59 N.Y. 356; Electric Co. v. Kelly, 57 N. J. L. 100, 29 A. 428; Duffy v. Upton, 113 Mass. 544; Rose v. Railroad, 58 N.Y. 217; Bahr v. Lombard, 53 N. J. Law 238, 21 A. 190; 2 Labatt, Mast. & Serv., sec. 837; Patton v. Railroad, 179 U.S. 658.)

If some material and necessary circumstance is left wholly unexplained by the evidence, the master is not liable. (Murphy v. Railroad, 68 Minn. 526, 71 N.W. 662; Railroad v. Malaney, 59 Ill.App. 114; Donnelly v. Railroad, 38 N.Y.S. 709; Patton v. Railroad, 179 U.S. 658; Fritz v. Electric Light Co., 18 Utah 502.)

There is no evidence that the defendant, or any of its employees, left the switch unlocked. But even if such proof were made, the leaving of the switch unlocked was not the proximate cause of the death of the deceased. Even though the switch was unlocked prior to the accident, still it was perfectly safe unless and until it was manipulated by some human agency. If the wrongful act of a trespasser or intruder intervened before the accident and turned the switch and left it open, then the act of such trespasser or intruder was the sole proximate cause of the accident. The fact that the switch was unlocked was only a remote cause or condition. (Railroad v. Trainor, 33 Md. 542; Insurance Co. v. Boon, 95 U.S. 117; Washington v. Railroad, 17 W.Va. 190; Mill Co. v. Standard Oil Co., 63 F. 400; Claypool v. Wigmore, 71 N.E. 509; Railway v. Kellogg, 94 U.S. 475; Cole v. Savings & Loan Soc., 124 F. 113; Smith v. County Court, 8 L. R. A. 82; Burt v. Newspaper Co., 154 Mass. 238; Railroad v. Gaither, 43 S.W. 266; Mars v. Canal Co., 8 N.Y.S. 107; Parker v. Cohoes, 10 Hun 531, 74 N.Y. 610; Shepherd v. Chelsea, 4 Allen 113; Jenks v. Wilbraham, 11 Gray 142; Mill Co. v. Standard Oil Co., 27 L. R. A. 583; Cuff v. Railroad Co., 35 N. J. Law 17; Barton v. Agricultural Society, 83 Wis. 19; Robinson v. Oregon Short Line, 7 Utah 493; Bevard v. Traction Co., 105 N.W. 635; Stone v. Railroad. 51 N.E. 1.)

The wrongful and unlawful act of a stranger in missplacing the switch could not create any liability against the defendant, unless the defendant was guilty of a subsequent breach of duty in failing to ascertain the existence of the dangerous condition, and such a breach of duty is neither alleged nor proven. (Railroad v. Gaither, 43 S.W. 268; Stone v. Railroad, 51 N.E. 1; Richmond v. Railroad, 40 N.Y.S. 812; Railroad v. Slattery, 57 Kan. 499, 46 P. 941; Marcum v. Railroad, 35 S.E. 423; Connors v. Railroad, 36 N.Y.S. 926; Martin v. Railroad, 26 S.W. 801; Railroad v. Wittig, 35 S.W. 859; Newson v. Kimball, 35 L. R. A. 135.)

Sutherland, Van cott & Allison and W. D. Riter for respondent.

McCARTY, C. J., delivered the opinion of the court. FRICK, J., STRAUP, J., concurring.

OPINION

McCARTY, C. J.

STATEMENT OF FACTS.

This action was brought by the heirs at law of George Edgar, deceased, to recover damages from defendant company for the alleged wrongful death of deceased, which occurred on the 5th day of July, 1905, at Park City, Utah. The complaint alleges that the deceased, on and prior to July 5, 1905, was a fireman in the employ of defendant company, and that on said day the engine on which he was riding was derailed by running into an open switch, thereby causing said engine to tip over and fall on its side, and thereby causing the death of said deceased, who was caught under the engine as it fell. It is further alleged "that said defendant company negligently and carelessly failed to keep said switch closed, in proper and safe condition so that cars would not leave the rails when passing over the same, and negligently failed to keep said switch locked, and negligently left said switch unlocked and open, and negligently failed to supply said switch with proper and safe signals, in that the signal maintained at said switch by said defendant company was too small, and the paint on the same was worn off and dingy and was dim and small, and that the same could not be seen by the said engineer or the said George Edgar, deceased, when employed as aforesaid in said engine." The answer of the defendant denies the negligence alleged in the complaint, and alleges that deceased was guilty of contributory negligence and that he assumed the risk of injury to himself in the manner alleged in the complaint. At the conclusion of the plaintiffs' evidence the court, on motion of defendant, granted a nonsuit. A motion for a new trial having been made and overruled, plaintiffs thereupon appealed to this court from the judgment of nonsuit.

The facts, as disclosed by the record, are as follows:

The deceased, at the time of the accident mentioned in the complaint, was, and for five years prior thereto had been, a locomotive fireman on the Park City branch of the defendant's railroad. The train on which he was employed was the regular passenger train running between Salt Lake City and Park City daily. The train left Salt Lake City each morning, and arrived at Park City at 10:50 o'clock in the forenoon, and departed daily on its return trip to Salt Lake City at 3:20 o'clock in the afternoon. This was the schedule run on July 5, 1905, the day on which the deceased met his death. On this day this particular train, in the switching operations, before it started on its return trip to Salt Lake City was run back and forth over the switch in question three times; the last time being about 11 o'clock in the forenoon. Each time when the train passed the switch and rails were in proper condition and were set and aligned for the safe passage of trains over the main line. After passing over the switch for the last time, the train was backed southward to the defendant's depot building, and there stopped, with the engine facing towards the north, ready to start for Salt Lake City at the usual time. The switch in question was about one thousand feet distant in a northerly direction. When the train pulled out, and had reached a point about 150 feet from the switch, the engineer, Joseph W. Bywater, for the first time noticed there was a break in the rails at that point, and he shouted to the deceased, "Jump George the switch is wrong," and at the same time set the brake, reversed the engine, and opened its throttle. The deceased, when thus warned of the danger, leaped from the engine. The train could not be stopped, and as a result thereof the engine ran into the open switch, was derailed, and turned over onto its side, with the fireman, George Edgar, underneath, thereby crushing him to death.

The switch stand used to manipulate this switch was rotary or revolving stand, and stood five or six feet from the rails and was used to throw the rails from one track to the other. It consisted of a pedestal of cast iron spiked or bolted to a tie which extended out from the track. There was a lever attached to the top above the pedestal, and on the pedestal was a disk, with slots in it, to permit the reception of the lever. By means of this lever the disk was revolved, and the lever dropped into one or the other of two slots. When the lever was in one position, the alignment of the rails was properly made for the main line, and when in another the continuity of the rails would cause a train going south to run onto a side track called the "house track." On this point Bywater, the engineer, testified in part as follows: "When the lever is there [in a slot] it is absolutely safe, even if the lock were unlocked. No train running over the rails could throw it out. . . . I cannot recollect the exact amount of power required to lift it out of the south slot and then bring it around and drop it into the west slot. It requires an...