Haarstrich v. Oregon Short Line R. Co.

• Decision Date: 29 November 1927
• Docket Number: 4604
• Citation: 262 P. 100,70 Utah 552
• Court: Utah Supreme Court
• Parties: HAARSTRICH v. OREGON SHORT LINE R. CO

262 P. 100

70 Utah 552

HAARSTRICH v. OREGON SHORT LINE R. CO

No. 4604

Supreme Court of Utah

November 29, 1927

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Elfreda Haarstrich, by her guardian ad litem, Wilhelmina Haarstrich, against the Oregon Short Line Railroad Company. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED.

George H. Smith, Robert B. Porter, J. V. Lyle, and Dana T. Smith all of Salt Lake City, for appellant.

Claude T. Barnes, of Salt Lake City, for respondent.

THURMAN C. J. CHERRY, HANSEN, and GIDEON, JJ., STRAUP, J concurring.

OPINION

THURMAN, C. J.

This is an action to recover damages for an injury occurring at a railroad crossing on what is known as Beck street in the northern part of Salt Lake City. The street forms part of the public highway leading from Salt Lake City to Ogden, and the injury occurred in a collision between the automobile in which plaintiff was riding and one of the cars of the defendant company. It is alleged in the complaint that the collision occurred at about 1:15 a. m. on September 19, 1926; that plaintiff at the time was riding in an automobile, as a guest, along the west side of said street toward the railroad track of defendant, which crosses said street; that "suddenly and without any previous warning, whistle, bell or other signal, defendant negligently and carelessly backed a chain of cars from the westward on said track toward said Beck street; that the foremost of said cars was of the gondola type, dark painted and low, and indistinguishable by the driver of said automobile from the surroundings of said crossing." It is then alleged that there was neither switchman, brakeman, nor light on the said gondola car, and no flagman at said crossing, and when the front end of said car entered Beck street and crossing the said automobile was so close that in spite of every effort on the part of the driver of said automobile to stop or swerve out of the path of said gondola car, the said automobile collided therewith, as a result of which and because of defendant's said negligence, plaintiff was seriously injured, for which she prays damages in the sum of $ 25,000.

Defendant, answering the complaint denies it was negligent in the respects alleged in the complaint or that plaintiff's injury was caused by any negligence of defendant. Further answering the complaint, and as an affirmative defense thereto, defendant alleges:

"That on the night of the 19th day of September, 1926, the plaintiff was riding in an automobile upon Beck street in a southerly direction at a point where certain tracks belonging to this defendant cross said Beck street; that at said time this defendant was switching certain cars across said street, and after it had switched a car partly across said street the automobile in which this plaintiff was riding struck one of the cars of this defendant; that said plaintiff could have seen said car and other cars for a long distance along said highway; and that her failure to either look or listen for a car or cars was the proximate and sole cause of said accident and whatever injury she may have suffered."

The cause was tried to a jury and a verdict rendered in favor of plaintiff for the sum of $ 5,035. On defendant's motion for a new trial the court entered an order to the effect that a new trial would be granted unless plaintiff would consent that the amount of the verdict be reduced to the sum of $ 1,040. Plaintiff consented to the reduction, and judgment was entered accordingly.

The defendant appeals from the judgment and assigns as error certain instructions to the jury, refusal to instruct as requested by defendant, and error in denying defendant's motion for a directed verdict and its motion for a new trial.

The evidence given at the trial, without dispute, tends to show that on the evening of September 18, 1926, Ben Birkenshaw, the owner of the automobile which was later wrecked in the collision, in pursuance of a previous arrangement, gathered together a group of young people at different points in the southern part of Salt Lake City and took them for a ride over different parts of the city. The group consisted of four boys and four girls, including the plaintiff and Birkenshaw, the owner of the automobile. At about 12 o'clock midnight at the close of a certain dance in the southern part of the city they started to drive around the city for a ride with no apparent objective point in view. Two girls and two boys, including the driver and the plaintiff, occupied the front seat. The other members of the party sat behind. The plaintiff sat on the lap of one Forsythe, on the right; the driver sat on the left; and a Miss Markham sat between. The exact position of those on the rear seat is not material. After driving around the city for some time they drove north on the highway leading towards Ogden, otherwise known as Beck street, as denominated in the pleadings. At some point beyond Beck Springs, on or near said highway, they turned the car around and started back over the highway towards the city. It was then about 1 or 1:15 a. m. of September 19th, as alleged in the complaint. A short distance south of the point where they turned is a sharp turn in the highway known as "Death Curve," and about 900 feet south of said curve are situated defendant's industrial tracks, three in number, separated from each other by an intervening space of 15 feet from center to center. The industrial tracks cross the highway substantially at right angles leading from the west towards the east. The evidence as to the speed of the automobile after rounding Death Curve and entering upon the tangent varies all the way from 20 to 50 miles an hour; but, as will hereinafter appear, the jury in answer to a special interrogatory found the speed to be between 25 and 30 miles an hour as the car approached the crossing. In any event, whatever may have been the speed at which the automobile was being driven, it collided with one of the defendant's cars moving towards the east on the north industrial track. The automobile was completely wrecked, and defendant's car showed signs of having received a tremendous jolt. Every occupant of the automobile was injured more or less, the plaintiff, perhaps, more than any of the others.

The plaintiff's contention is that the defendant company was negligent in several particulars, and that such negligence was the proximate cause of the injury. The specific omissions relied on as negligence on the part of defendant are the failure to give warning by blowing the whistle, ringing the bell, and not having a switchman, brakeman, or light on the car or a flagman at the crossing. The testimony of all of the occupants of the automobile was to the effect that they neither heard a whistle blow nor a bell ring; that they saw no switchman, brakeman, nor light on the car, nor a flagman at the crossing. The testimony of the driver of the automobile was to the effect that after rounding Death Curve he was driving about 20 miles an hour; that he was looking straight ahead and saw no switchman, brakeman, or light on the car, nor saw any one swinging a lantern; that he did not see the railroad car until he was within 13 or 15 feet of it; that he immediately turned the automobile from the west side of the paved highway towards the east side and applied the brakes, thereby reducing the speed to about the same as the rate at which the railroad car was moving, which was five or six miles an hour.

The collision occurred east of the center of the paved highway, near the outer edge. The automobile was dragged by the railroad car to a point some 15 feet east of where the collision occurred. The driver testified that his automobile was in good repair; that the brakes and lights had recently been tested and were in good shape. He also testified that his sight and hearing were good, and that he could stop his car within 40 feet when it was running 30 miles an hour.

Lloyd Howlett, a witness for plaintiff, testified he and two other parties were driving on the highway from Ogden to Salt Lake City on the night in question and that the automobile in which plaintiff was riding passed his automobile a short distance beyond Death Curve; that he was driving about 30 miles an hour and thought the car that passed him was traveling 35 miles an hour; that he saw the railroad car moving east when it reached the center of the street car track, which lies parallel with the highway a few feet to the west; that his car was at that time about 150 feet behind the automobile plaintiff was in, and he saw it swerve to the left when within about 15 feet of the car and saw the collision; that he was then 150 feet from the crossing; that he heard no whistle blow nor bell ring, saw no switchman, brakeman, or flagman, and saw no light on the car with which the automobile collided; neither did he see any one swinging a lantern; that his hearing and eyesight were good; that he assisted in moving the occupants of the automobile to the hospital.

We deem it unnecessary to detail specifically the testimony of the other occupants of the automobile. Their testimony is merely of a negative character as to warnings, signals, etc., as hereinbefore stated.

The plaintiff testified she saw the car on the track just before the collision and jumped up and said, "There's a train;" that she thought the driver swerved the automobile to the left, and when it struck...