Hartung v. Union Pac. R. Co.

• Decision Date: 20 July 1926
• Docket Number: 1255
• Citation: 247 P. 1071,35 Wyo. 188
• Parties: HARTUNG v. UNION PAC. R. CO. [*]
• Court: Wyoming Supreme Court

247 P. 1071

35 Wyo. 188

HARTUNG v. UNION PAC. R. CO. ^[*]

No. 1255

Supreme Court of Wyoming

July 20, 1926

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Martin H. Hartung, administrator of the estate of Charles F. Smith, deceased, against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

John C Pickett and William C. Mentzer, for appellant.

The court erred in refusing plaintiff permission to show the condition of lights on the rear end of the caboose standing on the passing track at Burns, and also as to condition of lights of the block signal; the court also erred in sustaining defendant's motion for a directed verdict; Hines v. Sweeney, 28 Wyo. 57; So. R. Co. v Cook, 226 F. 1; Stevens v. Ry. Co., (Mass.) 69 N.E. 339. A violation of company rules is material as affecting the question of negligence; Hayward v. Ry Co., 8 L. R. A. N. S. 1062; Potter v. Ry. Co., 208 Ill.App. 363. The circumstances of the accident, the position of the body, the speed of the train and the condition of the headlight presented a question of fact that should have been submitted to the jury; Sudden v. Ry. Co., 129 N.Y.S. 107. It cannot be presumed in this case that deceased extinguished his lantern or committed suicide, the presumption being that a person will use every precaution to preserve his own life; Cram v. Ry. Co., 101 P. 914 (Cal.); Ellis v. Oil Co., (Mo.) 110 N.W. 20; Peterson v. Oil Co., 106 P. 337; Co. v. Benjamine, 165 S.W. 120 (Tex.); Baker v. Ry. Co., 149 F. 882; Foley v. Power Co., (Cal.) 112 P. 467; Wilson v. Ry. Co., (Ia.) 142 N.W. 54; Korsch v. Ry. Co., (Ia.) 128 N.W. 529. A high rate of speed may, under some circumstances, be evidence of negligence; Blackburn v. Ry. Co., (La.) 80 So. 708; Stem v. Ry. Co., (Tenn.) 221 S.W. 192; Davis v. Scott, 235 S.W. 407; Ry. Co. v. Cook, (Texas) 214 S.W. 539. Under the circumstances, the presence of a flagman at the point of this accident should have been anticipated; 184 P. 765; or that people may be on the track; Ry. Co. v. Jones, (Okla.) 190 P. 385. An excessive rate of speed is evidence of negligence that should be submitted to the jury; Fillingham v. Ry. Co., (Mich.) 175 N.W. 228; Elliott v. Co., (Conn.) 80 A. 283; Hines v. Moore, (Miss.) 87 So. 1; Co. v. Hague, (Kan.) 38 P. 257; Ry. Co. v. Berry, (Ky.) 175 S.W. 340; Hollister v. Hines, (Minn.) 184 N.W. 857; Ry. Co. v. Miller, (Ky.) 135 Am. St. Rep. 433. It was the duty of the defendant to promulgate rules for the protection of employees; Engen v. Rambler, 20 Wyo. 126; So. Ry. Co. v. Smith, 205 F. 362. It was defendant's duty to operate his train at a rate of speed permitting time to stop within the distance covered by its train lights; Chambers v. Ry. Co., (W. Va.) 29 A. L. R. 1051, 117 S.E. 480; Blackburn v. Ry. Co., supra.

Herbert V. Lacey and John W. Lacey, for respondent.

The engineer had a right to presume that decedent would get off the track before the train reached him and he was not obligated to check his train until, from the circumstances, a person of ordinary prudence might assume that decedent was unconscious of the approaching train; Johnson v. R. R. Co., (Ky.) 25 S.W. 754; Lingenfelter v. R. R. Co., 4 S.W. 185, 9 Ky. Law Rep. 116; Nichols v. R. R. Co., 6 S.W. 339, 9 Ky. Law Rep. 702; France v. R. R. Co., 22 S.W. 851, 15 Ky. Law Rep. 244; Embry v. R. R. Co., 36 S.W. 1123; Murray v. So. R. R. Co., 140 Ky. 453, 131 S.W. 183. It was decedent's duty to watch for the train and keep out of its way; Ry. Co. v. Hunt, (Ky.) 135 S.W. 288. Section men whose duty requires them to work upon the track, cannot predicate negligence upon disobedience of a law or custom requiring a company to ring and whistle at crossings; Lepard v. R. Co., (Mich.) 130 N.W. 668. Defendant violated no duty, which it owed deceased; violation of a statutory duty provides an action only for those within the class protected; Lepard v. R. Co., supra; Figone v. Guisti, (Cal.) 185 P. 694; Faris v. Hoberg, (Ind.) 33 N.E. 1028; Muncie Co. v. Davis, (Ind.) 70 N.E. 875; Indiana Co. v. Neal, (Ind.) 77 N.E. 850; Guse v. Martin, (N. J.) 114 A. 316; Clark v. Ry. Co., (Kan.) 11 P. 134; Hamilton v. Co., (Minn.) 80 N.W. 693; Harty v. Central R. R. Co., 42 N.Y. 468. Where there is no breach of duty, there is no negligence; Kreigh v. Co., 152 F. 120; 2 Cooley Torts, 1410; Cincinnati Co. v. Swann's Adm'x., 169 S.W. 886; Waymire v. Ry. Co., (Kan.) 190 P. 588; Marklinger v. U. P. R. Co., (Kan.) 147 P. 1132; Ry. Co. v. Reynolds, (Ga.) 20 S.E. 70. Cases cited by appellant are clearly distinguishable upon the facts; where circumstantial evidence is relied upon, it must be proved, as circumstances are not presumed; U.S. v. Ross, 92 U.S. 281; 2 Rice Ev. 768. It is contended that the court erred in directing the verdict, for the following reasons: (a) Decedent was on the track. (b) The headlight was imperfect. (c) Excessive speed. (d) The engineer was not looking. In view of the evidence, we submit the following authorities as against this contention: Conniff v. Ry. Co., 99 S.W. 1154; Ry. Co. v. Harrod's Adm'r., (Ky.) 115 S.W. 699; Louisville R. Co. v. Seeley's Adm'r., 202 S.W. 638; Quinlanton v. U. P. R. Co., 197 P. 1095; Gabal v. R. Co., (Mo.) 158 S.W. 12; Williams v. So. P. Co., (Cal.) 160 P. 660; 1 White's Per. Inj. 434; 2 Bailey Per. Inj., 918; 3 Elliott Railroads, (2d Ed.) 629; Ry. Co. v. McIntire, (Okla.) 119 P. 1008; Hines v. Pershin, (Okla.) 215 P. 599; Bridge Co. v. Seeds, 144 F. 605, (C. C. A. 8); Newport News Co. v. Howe, 52 F. 362; Riccio v. New York etc. R. Co., (Mass.) 75 N.E. 704. One given warning of the approach of a train is bound to act with reasonable promptness for his own safety; Hines v. Sweeney, 28 Wyo. 57. The evidence shows that decedent was not on the track; there was no evidence that the headlight was not in good condition; no negligence was shown in regard to speed; Hines v. Sweeney, supra; Ry. Co. v. Judah, (Kan.) 70 P. 346; Ry. Co. v. Schriver, (Kan.) 103 P. 994; Land v. R. Co., (Kan.) 148 P. 612; R. Co. v. Hague, (Kan.) 38 P. 257; Custer v. R. Co., (Pa.) 55 A. 1130; Sutton v. Ry. Co., (Wis.) 73 N.W. 993. The evidence showed that the engineer was looking; the rules in effect by the company have legal sanction; Railroad Co. v. Neer, 26 Ill.App. 356; Kennelty v. Railroad Co., (Pa. Sup.) 30 A. 1014; Little Rock R. Co. v. Barry, 84 Fed. (C. C. A. 8) 944; Gilbert v. Ry. Co., 128 Fed. (C. C. A. 8) 529; Ry. Co. v. Walker, 172 Fed. (C. C. A. 8) 346. Even if all of plaintiff's evidence had been received, defendant would have been entitled to a peremptory instruction; Searles v. Ry. Co., 101 N.Y. 661; Warner v. R. R. Co., (Mo.) 77 S.W. 67; Caudle v. Kirkbridge, (Mo.) 93 S.W. 868. Where injury may have resulted from one of two causes, one a negligent act, the other a cause for which defendant is not responsible, the jury will not be permitted to speculate as to its verdict; Thomas v. Co., (Ky.) 151 S.W. 47; Davis v. Allen, (Ky.) 251 S.W. 194; Goy v. Director General of Railroads, (N. H.) 111 A. 855; Schell v. Ry. Co., (Wis.) 113 N.W. 657.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Martin H. Hartung, Administrator of the Estate of Charles F. Smith, sued the Union Pacific Railway Company for causing the death of said Smith on September 1, 1921. At the conclusion of the testimony, the court directed the jury sitting in the case to return a verdict in favor of the railway company. This was done, and judgment was rendered for the defendant, from which the administrator appeals.

The salient facts are as follows: On the 1st day of September 1921, and for a number of years prior thereto, Charles F. Smith, the decedent, was in the employ of said railway company as a flagman or rear brakeman on a freight train. He had considerable experience as such. He was a man of good habits, and was careful and diligent in his work. On the date last above mentioned he acted as flagman on a west-bound freight train running between Sidney, Nebraska, and Cheyenne, Wyoming. The railway company had a double track between these places, all west-bound trains running on the north track, and all east-bound trains on the south track. The freight train in question carried eighty-four cars. Odel Harper was the conductor in charge. At Pine Bluffs, Wyoming, Harper learned when train No. 17, an interstate, west-bound passenger train would go through. This train had the right of way. He decided that he could run his train into Burns, Wyoming, in time to clear the track for train No. 17. It was pulled onto the passing-track at Burns about 12:30 at night. The freight train was longer than the passing-track and it was necessary to "saw by" train No. 17 at that point. By "sawing by" is meant the method used for letting a following train go by in this manner, namely: The train ahead pulls onto a passing-track and out onto the main line until the rear of the train ahead is in the clear of the main line. The second train, that is to say the train to pass pulls past the rear end of the first train on the passing-track sufficient to allow that train to back onto the main line, in order to clear the main line ahead for the second train. When the freight train in question had pulled onto the passing track at Burns, Smith, in the performance of his duties as flagman and pursuant to his orders given him by the conductor, left the caboose of the freight train and went back to flag train No. 17. In doing so it was his duty to go one-fourth mile and plant one torpedo, then go one-fourth mile further and plant two torpedoes and then come back to the first torpedo to stand there and flag train No. 17 with his lantern. The proper place to plant the torpedoes was on the north rail of the north track. Smith...