Fares v. Rio Grande Western Ry. Co.

• Decision Date: 28 June 1904
• Docket Number: 1560
• Citation: Fares v. Rio Grande Western Ry. Co., 77 P. 230, 28 Utah 132 (Utah 1904)
• Court: Utah Supreme Court
• Parties: JOSEPH FARES, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

77 P. 230

28 Utah 132

JOSEPH FARES, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

No. 1560

Supreme Court of Utah

June 28, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

Messrs Sutherland, Van Cott & Allison for appellant.

Messrs Powers, Straup & Lippman for respondent.

BARTCH, J. McCARTY, J., concurs. BASKIN, C. J., dissenting.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

This is an action to recover damages for physical injuries which the plaintiff claims he received because of the negligence of the defendant. The essential allegations of the complaint are, substantially, that the defendant is operating a railroad between Salt Lake City and Park City, through Parley's Canyon, which extends east and west; that, at a point about 300 feet west of the company's water tank in the canyon, the public highway runs parallel with and adjoins the railroad, the railroad being on the south side and a cliff of rocks on the north side of the highway, leaving insufficient space to drive a team along the highway with safety while an engine is being operated on the railroad track; that because of the close proximity of the highway to the railroad it was the duty of the defendant, in operating its engine or cars, to give timely warning of the approach of its engine and cars at that point, and to keep a lookout for teams that might be traveling along the highway, and keep its engine under control, so it "could be stopped if any team was at that point on the highway;" that "when its engine stopped at the water tank it was its duty to look ahead and allow any passing teams to reach a safe place, and to blow the whistle and ring the bell before starting, and, in running its engines westward, to keep a lookout for passing teams, and stop should any be passing that point, and to approach said point with due care, and in such a manner that the engines could be readily stopped;" and that "on September 16, 1901, notwithstanding the defendant's knowledge of the danger, it failed in its duty in the foregoing respects, while plaintiff was at that point driving his team, and its engine collided with said team and wagon," causing the injuries of which complaint is made.

The facts and circumstances connected with the accident appear from the testimony of the plaintiff and the witness, Mrs. Jennie Priestly, who was riding with the plaintiff at the time of the occurrence. It appears that on September 16, 1901, the plaintiff and his lady companion left Salt Lake City for Park City with a light wagon and team. Traveling through Parley's Canyon in an easterly direction, they crossed the railroad track to the north side thereof, and, looking up the canyon, they saw an engine headed toward Park City, standing still and taking water at the water tank. At, and for some distance above, the crossing, there was considerable space between the track and the cliff of rocks on the north, but as they approached the engine the space became narrower until they reached a point about 200 feet west of the engine, where the space between the bottom of the cliff and the track was about 12 feet wide. This narrow space continued for a distance of about 60 or 70 feet, when it widened out again. As they thus drove along the railroad track, they saw the engine at the water tank nearly all the time, but saw no one on or about the engine. After the team had started into the narrow place and gone to a point about 175 feet from the engine, the engine started towards them without blowing the whistle or ringing the bell, and making just "the ordinary noise of an engine as it rolls over the rails--nothing unusual." Neither the plaintiff nor his companion made any effort, by calling or otherwise, to attract the attention of those in charge of the engine, until it started to move towards them, when they called, but apparently were not heard by them. At the sight of the moving engine the horses were frightened, and when it was about opposite them they whirled suddenly around toward the track, and in doing so one of them was struck by the tender, the vehicle overturned, and the plaintiff injured. The horses were not on the track at all.

In the course of his examination as a witness, the plaintiff, respecting the occurrence, testified: "When I saw that engine only 600 feet away, I didn't know which way it was going when it started. I didn't know anything about it. I looked up the track and saw the engine when I crossed the track several hundred feet below the engine. After crossing, I drove along substantially parallel with the railroad track. With very few exceptions, I could see the engine all the time, and I noticed it there all the time. My companion was sitting in the seat with me. I kept a lookout all the way up from the crossing, and I knew I was coming to the narrow place in the highway. I didn't know that the engine was going to start. It had been standing there all the while I had been in sight, and I thought I would get through. The distance the highway ran close to the track is about 60 or 70 feet. My team was trotting, and is perfectly gentle. I have driven them around railroad trains before; ordinarily they are not afraid of them. The place where the accident happened is 150 feet from where the engine was standing. The team whirled pretty near the end of the narrow space nearest the engine--150 feet from where the engine stood. The lower end of the narrow space would be about 50 feet from where the accident happened, so when I started in the narrow space the engine was about 200 feet away, and the team was trotting. I didn't see any one in the engine or working about it. I didn't see the engineer or the fireman until immediately after the accident. When I started into the narrow space on the trot I didn't give them any signal, but as soon as I saw them start I hollered. I don't know whether the engineer and fireman knew whether I was traveling along there or not. They told me afterward that they didn't. I could have hollered in time, and I did as soon as I thought there was any danger. When I started into that narrow space I could have hollered and made them hear me, but I did not holler until the engine started. The engine then was about 175 feet from me when it started. It came down the track with the tender first. I saw it start, and it wasn't necessary to whistle or ring the bell to let me know that the engine was starting. I don't know what effect the blowing of the whistle would have had on them; it might have scared them all the more--I don't know. It wouldn't have helped me a particle to blow the whistle or ring the bell before they started if they had kept on coming down. If they had blown the whistle or rung the bell just before starting, I would have been out of there flying, because all I had to do was to let out the lines and the horses would go like the wind. My horses were not afraid when the engine started about 175 feet away. There was no whistle or ringing of the bell as it came down the track. It just made the ordinary noise of an engine as it rolls over the rails--nothing unusual. When I drove up in that narrow place I knew that the engine, after it had got through taking water, would start. I didn't know which way it would start. They could have heard me holler, the moment before they started, better than after starting."

The witness Mrs. Priestly, as appears from the transcript and respondent's brief, among other things testified: "When Mr. Fares started in the narrow place he drove rapidly, so as to get out of the way, for fear the engine might come. That was spoken of. He whipped up, and the horses were pretty good travelers. We were both looking at the engine, and could not see anybody around it. When we got about half way up this narrow place the engine started. When we started into the narrow place we talked about the fact that the engine might start, so we concluded to drive rapidly to get out. The conclusion was that, as the engine was standing still, we would have time to get through. When the engine started, it didn't have to whistle to let us know it was starting, because we saw it start. They didn't ring the bell. They came rather quickly. When the engine started, the horses commenced to near; that is, when the engine was away a few yards." The witness further testified: "When the engine started it did not make any other noise than an engine will going over the rails, but its movements scared the team as soon as it started."

Under this and other evidence of similar import, the jury returned a verdict in favor of the plaintiff for the sum of $ 5,150, and judgment was entered thereon accordingly. Thereupon the defendant prosecuted this appeal.

BARTCH, J. (after stating the facts).--When the plaintiff rested his case, the defendant interposed a motion for a nonsuit, upon the ground, among others, that the railroad company was not shown to have been guilty of any negligence whatever in operating its engine on the occasion in question. The motion was overruled. Then, when both sides rested, the defense requested the court to instruct the jury to return a verdict in favor of the defendant, which request was refused, and thereafter a motion for a new trial denied.

The appellant under proper exceptions, complains, in the first instance, of these several rulings of the court, and insists that the evidence shows, without conflict, that the defendant was entitled to a verdict and judgment as matter of law. The contention is that the railroad company is not liable to the plaintiff...