Graham v. Ogden Union Ry. & Depot Co.
| Decision Date | 08 March 1928 |
| Docket Number | 4618 |
| Citation | 71 Utah 365,266 P. 504 |
| Parties | GRAHAM v. OGDEN UNION RY. & DEPOT CO |
| Court | Utah Supreme Court |
Rehearing Denied March 17, 1928.
Appeal from District Court, Second District, Weber County; George S Barker, Judge.
Action by Lena Graham against the Ogden Union Railway & Depot Company. Judgment for plaintiff, and defendant appeals.
REVERSED, and remanded for new trial.
George H. Smith, J. v. Lyle, R. B. Porter, and Dana T. Smith, all of Salt Lake City, and C. R. Hollingsworth, of Ogden, for appellant.
N. J Harris, of Ogden, for respondent.
Plaintiff brought this action to recover damages for a personal injury caused by the alleged negligence of the defendant company.
It is alleged in the complaint that Twenty-Eighth Street in Ogden City, Utah, is a public thoroughfare, one of the principal streets of said city, and extensively traveled; that the defendant company maintains a large number of railroad tracks over and across said street, and "that at all times mentioned herein the defendant did propel and operate a large number of freight and passenger trains along the said railroad tracks and over the said Twenty-Eighth street crossing, and did at all times use the said tracks as a part of its railroad yards, and did constantly use the same for switching its engines, trains, and cars, and for moving the same from place to place, and in doing so passed continually over the said crossing, and did often have its engines, trains, and cars moving in different directions and over its different tracks all at the same time; that the defendant did during all of said times have its engines, trains, and cars standing upon, or near said crossing, thereby obstructing the view of travelers going along and upon said highway, as they approached the said crossing, so that they were often unable to see trains and cars approaching said crossing from either direction by reason whereof, and, by reason of the running of trains in different directions and upon different tracks simultaneously, travelers often became confused, and were often, without any fault on their part, placed in danger of being run over and injured by defendant's engines and cars."
It is then alleged that, by reason of said facts and conditions and the danger to travelers passing over the said crossing, it was necessary that flagmen be stationed and maintained at said crossing to flag and stop defendant's engines and cars while people were passing over said crossing to prevent the frightening of teams and consequent dangers therefrom; that defendant negligently failed to maintain any flagman at said crossing, and that, on August 29, 1923, plaintiff was traveling on said street, with due care and caution, towards the defendant's said railroad tracks, and riding in a one-horse wagon driven by one Ross Gray; that, as they approached said railroad tracks, they were compelled to wait for a period of ten minutes by reason of said crossing being obstructed by defendant's trains and cars crossing the same; that, after the passage of said trains and cars, and when said crossing had become clear, plaintiff and her said driver started forward to cross said tracks; that it was the duty of defendant at said time to keep said crossing clear and permit plaintiff and her said driver to pass safely over said tracks; that, as plaintiff and her said driver who were traveling east approached the west track, and just as they had reached the same, the defendant, by its agents, servants, and employees, negligently, carelessly, willfully, and wantonly caused a locomotive engine which had been standing on said track, a short distance north of said crossing, to be suddenly started, and, with steam being emitted in large quantities therefrom, said engine was rapidly propelled southward over said crossing, and immediately in front of the horse attached to said wagon, thereby causing said horse, wagon, and occupants to be enveloped in a dense cloud of steam, thereby causing said horse to become frightened, and causing it to back up and overturn said wagon, throwing plaintiff therefrom with great force and violence, and pinning her under said wagon.
It is then alleged that, by reason thereof, plaintiff suffered great and serious injury; that her back and ankle were sprained and bruised, and her whole body made sick, lame, and sore, causing a great shock to her nervous system, so that she was compelled to remain in bed for a long time, and by reason of said shock to her nervous system she was caused to suffer, and for a long time did suffer, great pain and distress in body and mind, all to her damage in the sum of $ 999, for which sum she prayed judgment.
The defendant, answering, denied every allegation charging liability against the defendant, and affirmatively alleged that the said Ross Gray, the driver of said horse and wagon, was careless and negligent in driving said horse too close to the engine operated by said defendant.
The jury to whom the case was tried rendered a verdict for the plaintiff for the amount prayed for, and from the judgment entered thereon by the district court the defendant prosecutes this appeal.
The cause originated in the city court of Ogden City, and from the judgment entered therein an appeal was taken to the district court.
The errors assigned by appellant here relate, chiefly, to the admission of evidence over defendant's objection, the giving of certain instructions to the jury, and the refusal of the court to give certain instructions requested by the defendant. Before considering these alleged errors, we will briefly state the main features of the evidence relied on by respondent in support of the judgment.
The evidence shows that Twenty-Eighth street in Ogden City and the railroad tracks crossing the same are substantially as alleged in plaintiff's complaint. Plaintiff resided on Twenty-Eighth street, about a block west of the west track of the defendant. On the day of the accident she had occasion to travel east on Twenty-Eighth street and was being conveyed by Ross Gray, in a one-horse wagon. Gray and plaintiff's little girl sat on the front seat of the wagon, while plaintiff and her little boy sat on a cushion seat on the floor of the wagon, in the rear. Plaintiff testified that a freight train was passing south over one of the tracks east of the west track as she was leaving her house, and that an engine stood on the west track partly across the cement side-walk on the north side of Twenty-Eighth street. The engine was pointed toward the south. When the wagon in which she was riding reached a point about 33 feet west of the west track, the freight train, going south, had not entirely passed over the street, and they were compelled to wait at that point for about five minutes before the caboose of the train crossed over. While waiting there, she noticed the engine on the west track, and saw a man sitting in the cab on the right side. She said the man saw her and the vehicle in which she was riding. The west track and the track on which the freight train was running came together a short distance south of Twenty-Eighth street. As soon as the caboose passed over Twenty-Eighth street, the driver of the vehicle started to drive eastward. It was an upgrade, and the horse moved slowly. She did not see whether the engine on the west track started at the same time or not, but she testified that "when the horse got right close to the west track he suddenly stopped," and the first she knew the steam came all over the wagon and its occupants; that it was so thick she could not see at all "for the smoke." The horse commenced to push the wagon backwards, and pushed it to a point about twice as far from the track as was the point where they waited for the freight train to pass (which was about 66 feet from the west track). At that point the wagon turned over. Plaintiff was thrown from the wagon, and the wagon bed fell across her back and ankle. She stated that the pain in her back was "enormous"; that she could not sleep at night for quite a while; that, after the accident, she was helped up, and, to use her own language: and plaintiff "went straight to bed." Plaintiff testified her back "felt pretty bad"; that it hurt her still. Her ankle was swollen and blue--"a kind of a bluish black," and her back was the same way. Her husband told her how it looked. She was in bed for two weeks. She then got up "sitting around," and, when she felt dizzy or sick from being up, she would go back to bed. She said she had never had those dizzy spells before; nor had she had any trouble with her back or ankle before. The dizzy spells had not left her yet. After the injury, they came on quite often when she stood up, or "stooped around." On several occasions, particularly enumerated and described, she had become unconscious. She never noticed the dizzy spells when she was in bed, but when she stirred around too much they came on. She stated that when she felt a dizzy spell coming on she had to lie down and keep still. At the last trial in the city court she became unconscious. When she regained consciousness, she was at home.
Plaintiff's husband testified on plaintiff's behalf, and substantially corroborated her testimony as to her injuries, and especially as to her dizzy spells and spells of unconciousness. Plaintiff had been treated by different physicians for the injury to her back, but had obtained no relief.
Such in substance, was the testimony of the plaintiff as to the...
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