Evans v. Oregon Short Line Railroad Co.

• Decision Date: 29 April 1910
• Docket Number: 2103
• Citation: 108 P. 638,37 Utah 431
• Court: Utah Supreme Court
• Parties: EVANS et al. v. OREGON SHORT LINE RAILROAD COMPANY

108 P. 638

37 Utah 431

EVANS et al. v. OREGON SHORT LINE RAILROAD COMPANY

No. 2103

Supreme Court of Utah

April 29, 1910

Appeal from District Court, First District; Hon. W. W. Maughan Judge.

Action by Samuel R. Evans, and another administrator of Jesse J Price, against the Oregon Short Line Railroad Company.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith and F. K. Nebeker for appellant.

APPELLANT'S POINTS.

This court has uniformly held that the pecuniary loss arising from various elements of damage, is the sole measure of the damages recoverable in such an action as this. (Webb v. D. & R. G. R. R. Co., 7 U. 17; Chilton v. U. P. R. R. Co., 8 Utah, 47; Corbett v. O. S. L. R. R. Co., 25 Utah 449; Beeman v. Martha Washington Co., 23 Utah 139.) The office of a presumption is simply to serve until evidence of the fact which the presumption supposes is adduced. (Elliott on Evidence, sec. 91; Golinvaux v. Burlington C. R. & N. R. Co., 101 N.W. 465 [Ia.], 467; Waldron v. Boston & M. R., 62 A. [N. H.] 443; Mynning v. Detroit L. & N. R. Co., 35 N.W. 811 [Mich.], 812; Reed v. Queen Anne's R. Co., 57 A. 529 [Del.]-532; Winter v. Knights of Pythias, 69 S.W. 662 [Mo.]; Burk v. Walsh, 92 N.W. 65 [Ia.], 66; Keller v. Over et al., 20 A. 25 [Pa.]; Meyers v. Kansas City, 18 S.W. 914 [Mo.].) It is incumbent upon a traveler to exercise such care as to make the act of looking and listening reasonably effective. (Washington, etc., R. Co. v. Lacey, 94 Va. 460, 26 S.E. 834, 839; McCanna v. New Eng:, etc., R. Co., 2 R.I. 439, 39 A. 891-892; Comkling v. Erie R. Co., 63 N. J. Law, 338, 43 A. 666; Schomolze v. Chicago, etc., R. Co., 83 Wis. 659, 53 N.W. 743, 54 N.W. 106; Urias v. Pa. R. Co., 152 Pa. St. 326, 25 A. 566.)

Powers & Marioneaux and Geo. Q. Rich for respondents.

RESPONDENTS' POINTS.

The right of the wife to the society and protection of the husband, and the right of the husband to the society and services of the wife are regarded as the property of the respective parties. (Warren v. Warren, 89 Mich. 123; Spiking v. Consolidated Railway & Power Co., 33 Utah 339, 93 P. 847; Redfield v. Oakland C. S. Ry. Co., 110 Cal. 277; Denver, etc., Tramway Co. v. Tiley (Colo.), 59 P. 476; C. St. L. & T. R. Co. v. Johnson, 78 Tex. 536; Furnish v. N. P. R. Co., 102 Mo. 669.) The damages awarded were not excessive. (Sternfels v. Met. Street Railway Co., 77 N.Y.S. 309, 174 N.Y. 562; Lane v. Brooklyn Heights R. R. Co., 85 App.Div. [N.Y.], p. 85, 82 N.Y.S. 1057, 178 N.Y. 623; International & G. N. R. Co. v. McVey [Tex.], 81 S.W. 991, 85 S.W. 34; Texas Loan Agency v. Flemming [Tex.] 46 S.W. 63; Galveston H. & S. A. Ry. Co. v. Davis [Tex.], 65 S.W. 217; Louisville & N. R. Co. v. Shibell's Adm. [Ky.], 18 S.W. 944; Galveston H. & S. A. Ry. Co. v. Perry [Tex.], 85 S.W. 62; Chesapeake, O. & S.W. R. Co. v. Hendricks [Tenn.], 13 S.W. 696; Ericius v. Brooklyn Heights R. Co., 71 N.Y.S. 596; Reilly v. Brooklyn Heights R. Co., 72 N.Y.S. 1080; Ft. Worth & R. G. Ry. Co. v. Kime [Tex.], 51 S.W. 558; E. L. & R. R. Ry. Co. v. Smith, 65 Tex. 167; Chesapeake & O. Ry. Co. v. Dickerson's Adm. [Ky.], S.W. 615.) This court had held that in determining the amount of damages for death by wrongful act it is proper for the jury to consider the number and ages of the members of decedent's family, the loss of his society and companionship, his habits in regard to supporting his family and what he might be expected to do in the future, expressly excluding mere mental suffering. (Pool v. S. P. Co., 7 Utah, 303, 26 P. 654; Webb v. D. & R. G. Ry., 7 Utah, 17, 24, P. 616; Wells v. D. & R. G. Ry. Co., 7 Utah, 482, 27 P. 688; Chilton v. U. P. Ry., 8 Utah, 47, 29 P. 963; Corbett v. O. S. L., 25 Utah 449, 71 P. 1065; Hyde v. U. P. Ry. Co., 7 Utah, 356, 26 P. 979; Beaman v. Martha Washington Co., 23 U. 139, 63 P. 631; Rogers v. R. G. W. Co., 90 P. 1075; Spiking v. Consolidated Ry. & Power Co., 93 P. 847.)

FRICK, J. McCARTY, J., and LEWIS, District Judge, concur.

OPINION

FRICK, J.

This is an action by respondents, as administrators of the estate of one Jesse J. Price, deceased, to recover damages which it is alleged resulted from his death to his surviving widow and eight minor children, for whose benefit the action was prosecuted. Jesse J. Price was killed on the 19th day of September, 1907, in a collision with a passenger train of appellant while attempting to cross its railroad track with a team and wagon at a public road crossing in the town of Richmond, Cache County, this state, and it is alleged that the collision and death of said Price was caused by the negligence of the appellant. The alleged acts of negligence, briefly stated, are: (1) Excessive speed of the train; (2) failure to keep a proper lookout before reaching the crossing by defendant's servants; (3) permitting weeds, willows, and other obstructions to grow and remain on appellant's right of way at or near a public crossing; and (4) failure to sound the bell, blow the whistle, or give any other warning of the approach of the train. The case was submitted to a jury, who returned a verdict for respondents in the sum of $ 15,300. The court entered judgment on the verdict, from which this appeal is prosecuted.

While the errors assigned are numerous, we shall only consider those that are relied on and are argued in the brief of appellant's counsel. In order to avoid repetition, we shall state the facts, so far as deemed necessary, in connection with the discussion of the several assignments. Appellant asserts that the court erred in admitting certain evidence respecting the relations existing between the deceased and his wife, one of the beneficiaries of this action, as testified to by the family physician of the deceased as the physician had observed the decedent's conduct some nine or ten months preceding his death. The substance of the evidence, which is correctly stated by counsel for appellant in their brief, is as follows: "I observed that Mr. Price's treatment of his wife was most kind--beyond the average. He had to help dress her and attend to her. He attended to her as a trained nurse would have done. I have never seen a man who would attend to a woman as kindly and as well as he did. He assisted to dress her, and during the confinement, he gave me every assistance a man could. Mr. Price was a perfect specimen of manhood. He was robust, healthy, and strong. He was a well preserved man in every way." The contention is that this evidence should have been excluded upon the objection of counsel, which was upon the ground that the evidence is "immaterial, incompetent, and irrelevant." We think otherwise. Section 2912 of the Compiled Laws of the State of Utah of 1907, upon which this action is based, so far as material to the particular objection now under consideration, reads as follows: "In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just." (Italics ours.) The question, therefore, is not merely whether a wife has lost a husband or a child a father, who in a mechanical way provided for their support from his earnings or other means. We think that, in connection with the evidence showing what the deceased has contributed to the family for support and maintenance, the wife and children may also show the affection the deceased entertained for them, his disposition and deportment toward them, his counsel and advice, and his care and kindly solicitude for their welfare in so far as these things were made effective by his acts, and that the jury may consider all these things in connection with the evidence of the amount the deceased contributed for support, as aforesaid, in arriving at the amount which the widow and minor children shall receive as compensation for the injury sustained by them by reason of the death of the husband and father. We are of the opinion, therefore, that the court committed no error in overruling the objection and in admitting the evidence referred to.

It is, however, urged that the evidence was irrelevant and improper in any event, because the doctor's testimony referred to a specific instance or act relative to the deportment and disposition of the deceased, and to a time long prior to his death. The objection as stated above, however, was hardly broad enough to challenge the attention of either opposing counsel or court to this precise point. Assuming, however, for the purposes of this decision, that the objection was sufficiently broad, we are still of the opinion that the evidence was properly admitted. This objection, in any event, goes to the weight of the evidence rather than to its competency. There is no other way by which the decedent's affection, conduct, and treatment of his family could have been shown except as it was done, and the mere fact that the doctor did not come into daily contact with the husband and wife and was thus unable to testify to their daily conduct toward each other for a connected period of months or years in no way affected the admissibility of the testimony.

The next error assigned by appellant is very closely related to the one just discussed. This assignment relates to the admission of evidence relative to the physical condition of the widow of the deceased. The objection made to this evidence as disclosed by the record is "that it is not a proper element of damages." The court overruled the objection, and counsel saved an exception. The testimony given by a Mrs. Dent in brief is as follows: "Well, she is almost unable to help herself. She has had to be taken care of ever since she was paralyzed. Now she can't do any housework to amount to anything. She goes around the house and attempts to do some things, but not very much because she has...