Grow v. Oregon Short Line R. Co.

• Decision Date: 07 October 1913
• Docket Number: 2414
• Citation: 138 P. 398,44 Utah 160
• Court: Utah Supreme Court
• Parties: GROW v. OREGON SHORT LINE RY. CO

138 P. 398

44 Utah 160

GROW v. OREGON SHORT LINE RY. CO

No. 2414

Supreme Court of Utah

October 7, 1913

On rehearing February 5, 1914.

Appeal from District Court, Second District; Hon. J. A. Howell Judge.

Action by Cecillia Grow as administratrix of Cyrus L. Grow deceased, against the Oregon Short Line Railroad Company.

Judgment for defendant. Plaintiff appeals.

REVERSED AND REMANDED.

John G Willis for appellant.

P. L. Williams, Geo. H. Smith, F. K. Nebeker and C. R. Hollingsworth for respondent.

STRAUP, J. McCARTY, C. J., concurs. FRICK, J., dissenting in part. FRICK, J., concurring in part, dissenting in part.

OPINION

STRAUP, J.

This is an action to recover damages for the death of plaintiff's intestate. At the conclusion of the evidence the court directed a verdict in favor of the defendant. The plaintiff appeals.

The essential allegations of the complaint are: That the defendant, a Utah corporation, was and is a common carrier, operating a line of railway through and between the states of Utah, Wyoming, Idaho, Montana, and Oregon that at the time of the accident it was, and prior thereto for several months had been engaged in installing, and equipping its main line of railway with, what is known as a "block signal system," and that the deceased, who was in its employ and with others engaged in such work, was, near Mora, Idaho, run over and killed by an interstate passenger train operated by the defendant from Salt Lake City, Utah, to Huntington, Or. The alleged negligence is that the train was operated at a dangerous and excessive rate of speed, without signals or warning of its approach, without a headlight, and without observing a lookout. The defendant denied the alleged negligence, and pleaded assumption of risk and contributory negligence.

The evidence shows that the defendant, an interstate carrier by rail, was installing and equipping its main line from Salt Lake City, Utah, to Huntington, Or., with automatic block signals. It began such work at both ends, one at Salt Lake, the other at Huntington. As we gather from the record, automatic block signals do away with signalmen at the ends of block stations, and afford protection against obstructions on, or breaks in, the track, and especially indicate to train operatives when a train is running ahead of them or approaching them. The mechanism of the signals is not minutely or definitely described. Nor is that essential. They are sufficiently described to show that they are constructed along the track and connected with it in such manner as to be affected and operated by trains passing over the track, or by obstructions on, or breaks in, the track, and afford protection against, and prevent, accidents and collisions in the operation of trains. A witness, after generally describing the semaphores, casings, poles, motor, or battery, slot arm or connection rod, the arm signals or blades, etc., testified that:

"The automatic signals are operated from the rail by trains on or passing over the track, an electric current on the rail and the train causing a shunt through a relay, the circuit is carried from the pole line that controls all signals in opposite directions."

The blocks constitute a section or unit two or three miles in length, and are so constructed as to be operated independently of each other. At the time of the accident the system was completed, except for a distance of about forty-five or fifty miles in Idaho between Nampa on the west and Reverse on the east, and was in operation and in use west from Nampa to Huntington and east from Reverse to Salt Lake by the defendant in the operation of trains and in doing an interstate commerce business. For the distance of forty-five or fifty miles nothing had been done, except the construction of concrete foundations for the signals. The deceased and four other employees were engaged in installing the system about three miles east of Kuna, a place between Nampa and Reverse. They were in charge of a foreman. The deceased and the foreman preceded the other employees measuring off and locating places to put poles. The others followed digging post holes and stringing wire. Their outfit was temporarily maintained at Kuna, where they boarded and lodged in cars furnished by the defendant. The usual quitting time was six o'clock p. m., but the employees generally quit in time to return to their lodging place by six. On January 5th the foreman and the deceased quit at about five-thirty in the evening and started back on a gas motor tricycle operated on the track. The evening was cold and cloudy, the track frosty. A brisk wind blew from the west, the direction in which they were going. Because of the cold and the frost, the foreman and the deceased had difficulty in starting and operating the motor of the tricycle, which in starting and running made much noise. The foreman placed the deceased on the front end of the tricycle to hold the front wheels more firmly on the track. He sat on the tricycle facing a little east of south. They were going west to Kuna, their lodging place. The foreman was at the rear, shoving the tricycle to start it. When they reached the place where the four men were at work they carried the tricycle around a hand car on the track. The deceased again took the same position on the front end of the tricycle, the foreman at the rear, getting off and on shoving the tricycle on their way to camp. A passenger train with two engines approached from the east fourteen hours late, at seventy miles an hour (some of the witnesses testified forty-five or fifty, but we must take the evidence most favorable to the plaintiff against whom the verdict was directed), without signals or warning of its approach, without a headlight, and without the train operatives observing an outlook. It first reached the four men and the hand car on the track, who then were also quitting work and gathering tools. One of them, discovering the train, called to his fellow workmen, who barely got the hand car off the track, avoiding a collision. As they passed, the fireman said to the engineer that "was a close call for those fellows." They did not discover the foreman and the deceased on the tricycle until, according to the testimony of the train operatives, within a car length of them. At that moment, the foreman, discovering the train, suddenly threw himself from the tricycle, escaping unhurt. Grow, the deceased, was struck and killed. The train ran from one-half to three-quarters of a mile before it was stopped. It then backed up and took the deceased to Nampa. The track at the place of the accident was straight, the view unobstructed. The sun had set, and, though it was cloudy, yet it was sufficiently light to see a train a mile or more away. The men on the tricycle could be seen by train operatives for about the same distance. The engineer, as testified to by himself, "was not keeping a lookout," and, for that reason, did not discover the men on the tricycle until but a car length away. He knew he had struck the tricycle, but did not know, as he testified, that he had struck or hurt any one until the train was backed up.

A motion was made to direct a verdict on the grounds:

(1) That the deceased was not, at the time of the accident, engaged in work connected with or related to interstate commerce, but had completed his labors for the day and was on the way from his place of work to his place of abode; (2) that the signal system was not fully completed, and hence not in use by the defendant in the operation of its trains, or in connection with interstate commerce; (3) that the servants operating the train, whose negligence is complained of, were not engaged in interstate commerce; (4) that the defendant was not guilty of the acts or omissions complained of; and (5) that the deceased was guilty of contributory negligence, and assumed the risk.

The motion was granted on the grounds:

(1) Insufficiency of the evidence to show negligence, on the theory, as stated by the court, that the defendant was "under no duty to give warning to a sectionman working upon the track, or any other employee working upon its track, except the duty of seeking to prevent injury to the employee after his discovery upon the track has been made;" (2) that the deceased, sitting on the tricycle in the position he was, and capable of seeing the train had he looked, "assumed the risk by staying there of any injury which he might suffer;" and (3) that he, at the time of the injury, was not engaged in interstate commerce.

Counsel for both parties have largely argued the case upon the proposition or theory of whether the case is within or without the provisions of the act of Congress relating to the liability of interstate common carriers by rail to their employees. The act provides that every common carrier by railroad, while engaging in commerce between any of the several states, etc., shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee to his personal representatives, etc., for such injury or death, resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, etc. It further provides that contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, and where a violation by such carrier of any statute enacted for the safety of the employees contributed to the injury or death, the employee shall not be held to be guilty of either contributory negligence or assumption of risk. Act April 22, 1908, ch. 149, 35 Stat. 65; U.S. Comp. St. Supp. 1911, p. 1322, and amendment, Act April...