Gesas v. Oregon Short Line R. Co.

• Citation: 93 P. 274,33 Utah 156
• Decision Date: 21 December 1907
• Docket Number: 1867
• Court: Utah Supreme Court
• Parties: GESAS v. OREGON SHORT LINE R. CO

93 P. 274

33 Utah 156

GESAS v. OREGON SHORT LINE R. CO

No. 1867

Supreme Court of Utah

December 21, 1907

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Jesse Gesas, by his guardian ad litem, Morris Levy against the Oregon Short Line Railroad Company. Judgment for defendant, and plaintiff appeals.

REVERSED AND REMANDED FOR A NEW TRIAL.

Powers & Marioneaux, for appellant.

APPELLANT'S POINTS.

It is the duty of all persons seeing a child in a place of danger to give it warning. (Devereaux v. Thornton, 4 Ohio Dec. 449; Railroad v. Toban, 12 Tex. Civ. App 283, 33 S.W. 894; Davis v. Railroad, 92 S.W. 831; Railroad v. Boozer, 2 Tex. 452; McVoy v Oaks, 91 Wis. 214, 64 N.W. 748; Railroad v. Tonahill, 41 S.W. 875.)

In the case at bar the evidence does not show that (to use again the words of Justice Holmes), from "common experience," at this crossing the trainmen ought to have anticipated that a child might be present on the cars when the train started, but (to use the words of Justice Holmes again), the "special knowledge of the actor" ought to have required it to exercise ordinary care to discover whether a child might not be present on the cars when the train started. (Carmer v. Railroad, 70 N.W. 560; Railroad v. Clark, 20 C. C. A. 447; Lartz v. Railroad, 7 A.D. 515; Railroad v. Williams, 37 Florida 406; Shirk v. Railroad, 14 Ind.App. 126; Jones v. Harris, 40 A. 791.)

The operatives of a train ought to leave a space between its cars at a public crossing; failing to leave such space, there is an implied invitation to go over the cars. (Golden v. Railroad, 41 A. 302; Railroad v. Green, 49 S.W. 670.)

A jury might conclude that this conduct of the appellee in the present case, amounted to an implied assent or invitation to the appellant to cross between the cars of the train, which on the day of the accident, for so long a time closed the passage from his home to his place of labor. If so, the appellee was bound to exercise reasonable care to protect him in accomplishing the crossing, which he was with its consent, attempting to make. (Swift v. Statton Island R. T. Co., 123 N.Y. 650, 25 N.E. 378; Taylor v. Canal Co., 113 Penn. 162, 8 A. 43; 57 Am. Rep. 446; Railroad v. Murowski, 179 Ill. 77, 53 N.E. 572; Clampit v. Railroad, 84 Iowa 71, 50 N.W. 673.)

Here the court pointed out what he conceived was a defect in the evidence of plaintiff, and then refused to allow the defect to be remedied. It is in the interest of the public that if the testimony is available, and is offered under such circumstances, that it should be received. It prevents the expense of a retrial of the case. (White v. Railroad, 22 Utah 138; Lewis v. Mining Co., 22 Utah 51; Frank v. Mining Co., 19 Utah 35; McIntyre v. Mining Co., 20 Utah 328; Skeen v. Railroad, 22 Utah. 413; Wild v. Railroad, 23 Utah 265; McGarry v. Tanner Co., 21 Utah 16.)

P. L. Williams, Geo. H. Smith, and J. G. Willis for respondent.

RESPONDENT'S POINTS.

The general rule with reference to contributory negligence of children is, under ordinary circumstances, whether or not the child exercised such care and caution as children of his own age and experience would usually, but where by the facts and the evidence and the appearance of the child, it is shown that he possessed such knowledge, such mental capacity as to know and understand and realize the nature and character of his act and the risks incident thereto, his negligence becomes a question of law, the same as in the case of adults, and he is to be judged, not by his age, but by his competency. (Wendell v. Railroad, 91 N.Y. 420; Twist v. Railroad, 39 Minn. 164, 12 Am. St. 626; Egley v. O. R. & N. Co., 2 Wash. 409, 26 P. 973; Studer v. So. P. Co., 121 Cal. 400, 66 Am. St. 39; Marryman v. Railroad, 85 Iowa 634, 5 N.W. 545; Krenzer v. Railroad [Ind.], 43 N.E. 649; Raden v. Company, 78 Ga. 47; Masser v. Railroad, 68 Iowa 602, 27 N.W. 776; Railroad v. Bonison, 70 Ga. 207; Railroad v. Smith, 77 Tex. 179; Powers v. Railroad, 57 Minn. 322, 59 N.W. 307; Tucker v. Railroad, 124 N.Y. 308; Gay v. Railroad, 159. Mass. 238, 21 L. R. A. 448; Wallace v. Railroad, 165 Mass. 236; Thompson v. Railroad, 39 N.E. 709; Motel v. Railroad, 2 How. Prac. 30; Railroad v. Lewis, 79 Pa. St. 33.)

The plaintiff having the capacity and the understanding to know the danger and actually saying that he did know and appreciate it, as his conduct clearly shows from the testimony, that he did, he is to be charged with the consequences of his own act the same as an adult, and the uniform rule is that it is negligence, as a matter of law, to attempt to crawl under or between cars of a train. (Studer v. So. P. Co., 53 P. 942, 121 Cal. 400; Bollinger v. Railroad, 47 La. Ann. 721, 49 Am. St. 379; Concoran v. Railroad, 105 Mo. 399, 24 Am. St. Rep. 394; Powers v. Railroad, 57 Minn. 332, 59 N.W. 307; O. R. & N. Co. v. Egley, 2 Wash. 409, 26 P. 973; Gay v. Railroad, 159 Mass. 238, 21 L. R. A. 448; Wallace v. Railroad, 165 Mass. 236, 42 N.E. 1125; Ecliff v. Railroad, 64 Mich. 196, 31 N.W. 180; Railroad v. Rylee, 87 Ga. 491, 13 L. R. A. 634; Lewis v. Railroad, 38 Md. 588; 3 Elliott on Railroads, sec. 1261.)

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This was an action brought by plaintiff to recover damages for personal injuries alleged to have been sustained by the negligence of the defendant. The accident occurred at Blackfoot, in the state of Idaho. The plaintiff, at the time of the accident, was eight years of age. It was alleged in the complaint that the defendant obstructed certain street crossings in Blackfoot for thirty minutes by suffering and permitting a train of freight cars to stand upon the street; that the plaintiff and other children desired to pass over one of the crossings thus obstructed; before doing so the plaintiff inquired of the brakeman in charge of the train how long it would stand before the cars would be moved; that the brakeman told him that the cars would not be moved for half an hour; that while the plaintiff, relying upon what the brakeman told him, was attempting to pass between two cars, the servants of the defendant in charge of the train, and with knowledge of the plaintiff's presence, negligently, and without warning, moved the cars, by reason of which the plaintiff was injured. The answer was a general denial and a plea of contributory negligence. At the conclusion of plaintiff's case the defendant's motion for nonsuit was granted, from which judgment of nonsuit the plaintiff has prosecuted this appeal.

The evidence shows that the railroad tracks run north and south through the town of Blackfoot dividing the business district on the one side and the residence district on the other. Three crossings were blocked by two freight trains, one called the "Mackey" and the other the "St Anthony" train, for something over an hour. Plaintiff's father testified: "I went to dinner about 12 o'clock. I went over first to Ellis street, crossing where I usually cross to my home, and I stood there for quite a while. I went to the third crossing in order to get over there. I had to walk across by the tank. It was pretty near a quarter to 1 o'clock before I got to dinner. It took me three-quarters of an hour to get across. The train held those crossings for three-quarters of an hour. The only means of crossing the tracks there on these three crossings was to get over the cars. If I didn't go over the cars, I would have had to walk above the water tank, three crossings and probably two blocks farther. At the crossing where the boy was hurt you couldn't cross at all, unless you went over the train or under it, and one would have to go around the train about six blocks either way if one went north or south. The last time I saw that train upon that track blocking that crossing was at 1:30 o'clock . . . . Plaintiff was eight years old at the time of the accident. He had been going to school two years and a half. The plaintiff himself testified: "I was waiting there (at the crossing) about half an hour, and the brakeman came along and I asked him how long before the train would be going. He said it would be thirty minutes . . . . When I first saw that brakeman, I was by that first crossing towards the north, the one where I was hurt. We were right by the train when I asked the brakeman when the train would move. He was walking down by the train, and when he went past me I asked him, 'Brakey, how long before the train will be going?' and he said, 'thirty minutes' Earl Rogers, Keeny Donell, Frank Dekay, and my older brother Charlie were with me. Charlie and the other boys was about two heads taller than myself. We were all there together when I spoke to the brakeman. My brother went over the top of the train. The brakeman went on up. When I asked him he said I had time if I wanted to. It was at the time my brother went over the train that the brakeman told me I had time to go if I wanted to. After the brakeman told me that I went over the couple. He said I had time. I went over what pulls the cars together so that the engine can pull them. The train gave a jerk, and I fell across the track. We saw men and other boys doing it, so we thought we could. After the brakeman said that to us I saw ten or fifteen other people doing it. I saw ten or eleven boys and men both going over ahead of me. I was going over to get some money so I could go to the show --to get a quarter from papa so I could go to the show that day. The show was on the other side of the track. It had not started yet. The brakeman said it would be thirty minutes before the train would go, and that I would have time. I and the other boys with me had waited there half an hour before we saw the brakeman and asked him that. There was two main tracks...