Hall v. The Ogden City St. Ry. Co.

• Decision Date: 01 April 1896
• Docket Number: 661
• Citation: 13 Utah 243,44 P. 1046
• Court: Utah Supreme Court
• Parties: WILLIAM H. HALL, APPELLANT, v. THE OGDEN CITY STREET RAILWAY COMPANY, RESPONDENT

44 P. 1046

13 Utah 243

WILLIAM H. HALL, APPELLANT, v. THE OGDEN CITY STREET RAILWAY COMPANY, RESPONDENT

No. 661

Supreme Court of Utah

April 1, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.

This case came up for trial on the 14th day of April, 1895. After plaintiff had introduced all his evidence, defendant's counsel moved for a nonsuit on the ground that the evidence showed that the plaintiff was guilty of contributory negligence, which caused the injury complained of. The motion was granted and an exception taken. Plaintiff had delivered a load of hay and returned to the public highway when the accident happened. His evidence upon cross-examination was taken as the chief reason for granting a nonsuit and was as follows:

The shade trees are 16 feet from the gate. The car that struck me was going south. I looked before I got into the middle of the road, but not after I got to the middle of it. I looked just after I passed the shade trees. I was just barely striking the road. There were electric poles there to obscure my vision. There were teams in the road, I believe. I think this would obstruct the view some, but not a great sight; it would in a certain instance. It was just after I left the sidewalk that I looked north and south to see whether any car was coming or not. I did not look just as my team stepped on the track; I looked just before they got to the track. I saw none.

Just as I got from the sidewalk close by the shade trees I cast my eyes to the north and then to the south. I seen no cars and made up my mind that there was a clear way and drove right along. I was thinking of the car then; I turned slightly south. It might have been two rods from the time I got from the alley to the center of the track. Then I turned suddenly west, but did not right then look to see if the car was coming. Do not remember to have pulled out my handkerchief to wipe my face. Coming up to the track, I did not have my eyes towards the north then. My head was turned a little more to the south than to the north at that time. My little boy was on the wagon with me; had my lines in my hand; was looking at my team more than anything else when I was crossing the track. I did not see any cars; of course I was looking attending to my team. I looked ahead in the direction my team was traveling; before approaching the track to drive upon it I did not look either to the north or south. After crossing out of the alley on to the street I would have difficulty in seeing the car. I claim that I did look when I approached the street.

Reversed and remanded.

Maloney & Perkins and Rhodes & Tait, for appellant.

In Buswell on Personal Injuries, section 112, page 161, it is said: "The mere giving of signals required by law under such circumstances will not relieve the defendant corporation from the imputation of negligence, if in fact it was negligence in other respects, as by running its trains at a dangerous rate of speed under the circumstances of the case."

It has been held that running trains at a greater rate of speed than allowed by statute or city ordinance is negligence per se. Wall v. Delaware, L. & W. R. R., 54 Hun. 454; Bitner v. Railway Co., 4 Utah 502; Keim v. Union Railway & Transit Co., 92 Mo. 314; Piper v Milwaukee & St. P. R. R., 77 Wis. 247; Gulf C. & S. F Ry. Co., v. Breitling, 12 S.W. 1121.

In Denver Tramway Co. v. Reid, 35 P. 269, on page 274, the Colorado court said: "Aside from the deadly agent used as a motive power the charge of the court that the defendant was bound to use extraordinary care and would be liable for slight negligence is warranted by the authorities."

In Riley v. Salt Lake Rapid Transit Co., 37 P. 681, 10 Utah 428, it is held that "in the absence of evidence to explain the excessive speed of the car at the time of the accident it was not error to charge that the running of the car at a rate of speed forbidden by ordinance was negligence per se."

In this last case the city ordinance of Salt Lake City was introduced in evidence, sec. 5, ch. 12, page 88 of Salt Lake City ordinances is identical with sec. 5, ch. 23, page 176 of Ogden City ordinances in so far as the speed of cars is concerned. If the ordinance of Salt Lake City is binding on the street car companies and admissible in evidence, why is not the same ordinance in Ogden binding on respondent and admissible in evidence? Error is assigned on the ruling of the court sustaining defendant's motion to exclude the city ordinance. Abstract, 12.

But outside of any city ordinance it is clear that respondent was guilty of negligence in running its cars at such great speed.

In Buswell on Personal Injuries, page 180, it is said: "It is ordinarily for the jury to determine under the circumstances of the case whether the road is negligent in running a train at a particular rate of speed. But, whether prohibited by statute or not, it is, as matter of law negligent to run a train at a high rate of speed over a public crossing, or through a frequented street in a city or village," citing St. Louis, V. & T. H. R. R. v. Faitz, 23 Ill.App. 498; Reilly v. Hannibal & E. R. R., 94 Mo. 600.

In Everett v. Railway Co., 9 Utah 340, 349, says: "The obligation is mutual to use care to avoid the consequences of each other's negligence, the whole matter being for the determination of the jury, as to whose negligence and want of care constituted the proximate and direct cause of the injury." Wagner v. Railway Co., 97 Mo. 512; (S. C. 10, S.W. 486); Davies v. Mann, 10 Mees. & W. 545; Railroad Co. v. Still, 19 Ill. 499; Dunn v. R. R. Co., 58 Me. 187; Coasting Co. v. Tolson, 139 U.S. 551; Creed v. R. R. Co., 86 Pa. St. 139. Appellant should not have been non-suited. Leak v. R. R. Co., 9 Utah 250, 251; Railway Co. v. Ives, 144 U.S. 417; (S. C., 12 S.Ct. 679).

In Wilson v. Cunningham, 3 Cal. 241, it was held that where the streets of a city are diverted from their ordinary and legitimate use by special license (as in the case at bar) * * * and in the pursuit of a business which involves constant risk and danger, he is bound, in the exercise of such right, to use extraordinary care.

Evans & Rogers, for respondent.

Cited: Ehrisman v. East, etc., City Ry. Co., 150 Pa. St. 180; Carson v. Federal Street Ry., 147 Pa. St. 219; s. c., 23 A. 369; Ward v. Rochester Elec. Ry. Co., 17 N.Y.S. 427; Marsland v. Pittsburg Ry. Co., 123 Pa. St. 438; s. c., 7 A. 624; Hamilton v. Third Ave. Ry. Co., 26 N.Y.S. 754; Davidson v. Denver Tramway Co., 25 P. 920, (Colo.); The Chicago, etc., Ry. Co. v. Houston, 95 U.S. 697; Schofield v. Chicago, etc., Ry. Co., 114 U.S. 615; Booth on Street Ry. Law, Sec. 5316; Kelly, etc., v. Hendries, 26 Mich. 255; Elliott, etc., v. Chicago, etc., Ry. Co., 150 U.S. 245; Boerth v. West Side Ry. Co., 58 N.W. 376, (Wis.); Blakeslee v. Consolidated St. Ry. Co., 63 N.W. 401, (Mich.); Philadelphia Ry. Co. v. Peebles, 67 F. 591; The Chicago, etc., Ry. Co. v. Bert, 69 Ill. 389; The Penn. Ry. Co. v. Bell, 122 Pa. St. 58; s. c., 15 A. 561; Cooley on Torts, page 817; Glasscock, etc., v. Central Pac. Ry., 73 Cal. 137; Patterson Ry. Accident Law, sec. 157.

In the case of Ehrisman v. East, etc., City Ry. Co. the facts are almost identical with those in the case at bar. That was a case where the injured party was driving his team down the street in the same direction as the car, and when about fifty or sixty feet from the track, he looked out, but did not see the car coming. He then drove his horse obliquely across the track and without looking again before crossing it.

When seen by the motorman in charge of the car his wagon was moving in the same direction and the accident was caused by turning his horse directly across the track in front of the car. The supreme court of Pennsylvania, in speaking of this question, used the following very appopriate language: "When, therefore, a citizen attempts to cross such track, it is his duty when he reaches it to look in both directions for an approaching car. It very rarely, if it ever, happens that a street is so obstructed that a car may not be seen as the citizen approaches the track.

It is his duty to look out at this point, and, if there is an obstruction, to listen, and his negligence to do so is negligence per se. This is an unbending rule, to be observed at all times and under all circumstances. * * * If the citizen looks just before he crosses he avoids all danger of accident."

Counsel contend that it is negligence to run cars at a high rate of speed. We admit that under some circumstances this might be the case.

We insist, however, that there is nothing in the record tending to show that the car which caused the injury was run at any other than a usual rate of speed. The proof merely showing that the car, at the point of injury, was run at the rate of twenty-five or thirty miles an hour, without showing any other fact, such as that the speed was unusually high, is not proof of a high or dangerous rate of speed. In the absence of such proof it is clear, both upon principle and authority, that the company was not negligent by running its cars at such a rate of speed. Calhoun v. Ry. Co., 61 Am. & Eng. Ry. Cases, 364; Elliott v. Ry., 95 U.S. supra; Patterson Railway Accident Law, sec. 157 and cases cited.

The next point noticed by counsel in his brief is that to run a train at a rate of speed in excess of that allowed by the city ordinance is evidence of negligence. We frankly admit that this is the settled law. This point, however, does not arise in this case. The ordinance which appellant's counsel sought to introduce in the court below, reads as follows: "The tracks of all railroads hereinafter constructed shall be laid in the center of the street, unless...