English v. Southern Pac. Co.

• Decision Date: 27 May 1896
• Docket Number: 665
• Court: Utah Supreme Court
• Parties: JANE ENGLISH ET AL., RESPONDENTS, v. SOUTHERN PACIFIC COMPANY ET AL., APPELLANTS

45 P. 47

13 Utah 407

JANE ENGLISH ET AL., RESPONDENTS, v. SOUTHERN PACIFIC COMPANY ET AL., APPELLANTS

No. 665

Supreme Court of Utah

May 27, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.

Action by Jane English and others against the Southern Pacific Railway Company and the Ogden Union Railway & Depot Company for damages sustained by the plaintiff by reason of the death of her husband, caused by a passenger train. From a judgment for the plaintiffs, defendants appeal. Modified as to the amount of damages.

Judgment modified.

Marshall & Royle and Parley L. Williams, for appellants.

When a view of the track is obstructed, the traveler must use increased diligence, and if he ventures upon a track from which his view has been obstructed, without first seeking to ascertain the facts, he does so at his peril. Grifflin v Chicago, etc., R. Co., 68 Iowa 635; Seefeld v. Chicago, etc., R. Co., 70 Wis. 278; Chicago, etc., R. Co. v. Crisman, 19 Colo. 30; Chicago, etc., R. Co. v. Fisher, 49 Kans. 460; Tucker v. Duncan, 9 F. 867; Mackey v. N.Y. Central Railroad, 27 Barb. 529, 542; Pennsylvania Co. v. Morel, 40 O. St. 338; Atchison, etc., R. Co. v. Townsend, 39 Kans. 115; Pennsylvania Co. v. Frana, 112 Ill. 398; McBride v. Northern Pac. R. Co., 19 Oregon 64; Darbin v. Oregon R. & N. Co., 17 Oregon 5; Clark v. Northern Pacific R. Co., 47 Minn. 380; Pennsylvania R. Co. v. Beale, 73 Pa. St. 504; Hickson v. St. L., etc., R. Co., 80 Mo. 335; Kelly v. Chicago, etc., R. Co., 88 Mo. 534; Whalen v. N.Y., etc., R. Co., 58 Hun. 431; Abbott v. Dwinell, 74 Wis. 514; Gothard v. Alabama, etc., R. Co., 67 Ala. 114; B. & O. R. Co. v. Hobbs, (Md.) 19 Am. & Eng. R. Cas. 337; Brady v. Tol. etc., R. Co., 81 Mich. 616.

A traveler at a railroad crossing whose view of a railroad track is temporarily obscured by smoke or by a passing train, or by other temporary causes, is in duty bound to stop and wait until the obstruction to his view is removed, before crossing the track into a position of peril, and if he heedlessly pass forward into collision with an approaching train, he is chargeable with contributory negligence. Foran v. N.Y., etc., Co., 64 Hun. 510; Chicago, etc., R. R. Co. v. Crisman, 19 Colo. 30; Chicago, etc., R. Co. v. Fisher, 49 Kans. 410; Fletcher v. Fitchburgh R. Co., 149 Mass. 127; Marty v. Chicago, etc., R. Co., 38 Minn. 108; Hamm v. N.Y., etc., R. Co., 18 I. & S.78; Krause v. Pennsylvania, R. Co., 139 Pa. St. 272; Fleming v. W. P. R. R. Co., 49 Cal. 257; Schmidt v. Philadelphia, etc. R. Co., 149 Pa. St. 357; Benson v. Chicago & N.W. R. Co., 41 Ill.App. 227; Whalen v. N.Y., etc., R. Co., 61 Hun. 623.

The following cases also hold that it should not be charged as a rule of law, nor submitted to the jury to determine, that it is the duty of a railroad company to keep a flagman at a crossing, when not required by any statute, or municipal ordinance, or by self-imposed custom. Erns v. Hudson River, etc., Co., 39 N.Y. 61; Calahan v. N.Y., etc., R. R. Co., 60 N.Y. 136; Dyer v. Erie Ry. Co., 71 N.Y. 231, 233; Paralinsky v. N.Y., etc., R. R. Co., 82 N.Y. 427; Houghkirk v. Press, etc., Co., 29 N.Y. 226, 227; Cumming v. Brooklyn, etc., R. Co., 105 N.Y. 671, 672; Scmel v. N.Y., etc., R. R. Co., 9 Daly 321; Buck v. Manhattan R. Co., 15 Daly 279-281; Schwartz v. H. R. R. Co., 4 Robt. 347; Southerland v. N.Y., etc., R. R. Co., 9 J. & S. 17-18; Crawford v. Del., etc., R. Co., 23 J. & S. 50; Coyle v. Long Island R. R. Co.,33 Hun. 37; Case v. N.Y., etc., R. R. Co., 75 Hun. 528, 530; Dyson v. N.Y., etc., R. R. Co., 57 Conn. 923; Heddles v. Chicago, etc., R. R. Co., 74 Wis. 239, 256-7; Winchell v. Abbott, 77 Wis. 375-6; Welsch v. Hannibal, etc., R. Co., 72 Mo. 451; Penn. R. R. Co. v. Matthews, 36 N. J. L. 534-536; State v. R. R. Co., 47 Md. 85; Stubley v. London & N.W. R. Co. L. R. 1 Ex. 13; Cliff v. Midland Ry. Co., L. R. 5 Q. B. 257 Pennsylvania R. R. Co. v. Matthews, 36 N. J. L. 534-6; Haas v. Grand Rapids & Ind., 47 Mich. 406; Welsch v. Hannibal, etc., R. Co., 72 Mo. 451; Cliff v. Midland Ry. Co., L. R. 52 B. 264-6; Peoria, etc., Ry. Co., v. Herman, 39 Ill.App. 287; Villance v. Boston, etc., R. Co., 39 F. 365; R. R. Co. v. Ices, 144 U.S. 408, 420-1; Lapsley v. Union Pacific R. Co., 50 F. 177; Railway Co. v. Schneider, 45 O. St. 693-4.

Upon the question of proof of the compliance of the railroad company with the statutory signals, the following authorities establish the principle that where there is positive proof of numerous witnesses that the statutory signals were given the mere negative statement of witnesses who did not hear them does not raise a substantial conflict, and in such a case a verdict based upon the theory that they were not given is against the evidence. Culphane v. N.Y., etc., R. R. Co., 60 N.Y. 134, 137; Shufelt v. R. R. Co., 96 Mich. 334-5; Durkee v. Pres. D. & H. R. Co., 34 N.Y.S. R. 978.

The jury in the case at bar rendered its verdict for the sum of $ 15,000.00, which verdict was on motion for a new trial reduced to the sum of $ 13,000.00, and, as we contend, is still far in excess of any damages, which under the law, could or should be allowed in this case; and which amount is far in excess of any judgment that has heretofore been rendered by the courts of Utah territory in the case of death.

If the court will refer to the Utah Reports, in the case of Webb v. Rio Grand Western Ry. Co., or the case of Seeley's Administratrix v. So. Pac. Co.; or the case of Poole v. So. Pac. Co. it will find that in no one of these cases has such a verdict been sustained or such a judgment suffered to stand.

Railway Co. v. Eddy, 42 Ark. 527: "As the elements of damage in this class of cases are largely indeterminate, and admit of no exact standard of measurement, it is seldom that the court's duty to review a jury's award can be made to appear; but this difficulty does not excuse a performance of the duty whenever it is clearly discerned."

The following citations fully support the quotation above given: Wood's Mayne, Dam. p. 746, and cases; 3 Suth. Dam. 259; 3 Sedg. Dam. § 1319 et seq.; Gilbert v. Berkinshaw, Lofft. 771; Frothingham v. Express Co., 36 F. 252; Burdick v. Weeden, 9 R. I. 139; Wood v. Gunston, Style 466; Worster v. Proprietors, etc., 16 Pick. 547; Railway Co. v. Dwyer, 36 Kan. 58; Goetz v. Amos, 22 Mo. 170; Swartzel v. Dey, 3 Can. 244; Clapp v. Railway Co., 19 Barb. 461; City v. Fisher, 53 Ill. 407; City v. Kelly, 69 Ill. 475.

Evans & Rogers and A. G. Horn, for respondents.

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

OPINION

MINER, J.:

This action was brought to recover damages arising from the alleged negligence of the defendants, in causing the death of William English. Upon a trial the jury found a verdict for the plaintiffs in the sum of $ 15,000. Upon a motion for a new trial the verdict and judgment were reduced to $ 13,000.

It appears that on November 21, 1894, the defendants owned and controlled numerous railroad tracks crossing Twenty-fourth street, in the City of Ogden; that the depot and grounds of the companies consisted of 60 acres of land, at which point numerous railroad tracks center; that during nearly every hour of the day, and at times almost continually, the three different railroad companies were moving their trains upon the tracks across Twenty-fourth street, running north and south, to and from the depot. Twenty-fourth street is a well-settled and much-traveled street, near the center part of the city, consisting of about 15,000 people. Prior to the date of the injury complained of, the defendants had never stationed a flagman at the crossing to warn those using the street of the approach of trains, which were almost constantly passing and switching their trains and cars across the street, and no gates were ever erected, or other precautions used, to warn the numerous traveling public of the danger, except the ringing of the bells, and the blowing of the locomotive whistles, as the trains passed over the crossing. At the time of the accident, the Rio Grande Western Railroad Company were switching and engine and three cars from the ice-house switch, going northward across Twenty-fourth street. While doing so, the deceased, William English, was traveling west, across Twenty-fourth street with a horse and express wagon. He stopped a few feet east of the Rio Grande track and train, until it cleared the center of the street, just north, where it remained close to the street. At this time the Southern Pacific train, consisting of seven cars, started about a mile north of Twenty-fourth street, and pushed a train of seven cars towards Twenty-fourth street. The Rio Grande train obstructed the view of the deceased so far as the movements of the Southern Pacific train were concerned. Without seeing the Southern Pacific train, the deceased started to drive across the track No. 1, in the rear of the hind car of the Rio Grande train, standing on the track. As he crossed track No. 1, and came upon track No. 2, nine feet to the west of it, the Southern Pacific train backed up at the rate of five or six miles per hour, and he was struck by the rear end of the Southern Pacific train, and crushed under the wheels of the cars. He died from such injuries shortly thereafter. The accident occurred about 4 o'clock in the afternoon of a clear day. Several witnesses testify that the Southern Pacific train bell was rung, and the whistles sounded many times; while other witnesses say they heard bells and whistles and other noises, but did not hear the Southern Pacific bell or whistle. When the deceased was taken from under the cars, he remarked that he did not see the train coming. Before the deceased reached track No. 2, he inquired of Mr. Couch, a...