Hern v. Southern Pac. Co.

• Decision Date: 13 July 1905
• Docket Number: 1652
• Citation: 29 Utah 127,81 P. 902
• Court: Utah Supreme Court
• Parties: NEAL HERN, Appellant, v. SOUTHERN PACIFIC CO., OGDEN LUCIN RAILROAD CO. and GEORGE BECKHAM, Respondents

81 P. 902

29 Utah 127

NEAL HERN, Appellant, v. SOUTHERN PACIFIC CO., OGDEN LUCIN RAILROAD CO. and GEORGE BECKHAM, Respondents

No. 1652

Supreme Court of Utah

July 13, 1905

APPEAL from District Court, Box Elder County; C. H. Hart, Judge.

Action by Neal Hern against the Southern Pacific Company and others. From a judgment in favor of defendants, plaintiff appeals.

AFFIRMED.

A. W Agee and W. L. Maginnis for appellant.

APPELLANT'S POINTS.

During the impaneling of the jury, one John B. Finn, was called and examined on his voir dire and stated that he had no feelings of bias or prejudice in cases like this, in which plaintiff sues for personal injuries, and that he knew of no reason why he should not sit as a juror in the case. After verdict was returned appellant and his counsel learned for the first time that only a few days before, this juror, in a similar case had declared on his voir dire that he was "biased and prejudiced in a general way" against such actions, and after a thorough examination on the subject by counsel and the court, he had been excused on a challenge for bias. They also learned that the juror had married a niece of H. H Cordon, a detective in the employ of the Southern Pacific Company, who was present, assisting counsel for the defense in the selection of the jury and the trial of the cause. All of these facts were shown by affidavits filed in support of appellant's motion for a new trial, and none of them were denied.

It is the settled rule of law in this State that when it is made to appear that "a juror when asked as to his opinion on voir dire had given false answers, and such formation of opinion was unknown to the party at the time, a new trial will be granted." (State v. Morgan, 23 Utah 212; State v. Thompson, 24 Utah 214; Tarpey v. Madsen, 26 Utah 294.)

An instruction submitted to the jury the question of whether he had been a mere loiterer for two days after obtaining these papers. There was no evidence to justify the submission of any such question to the jury, and the jury would not have been justified in finding any such fact. "If an instruction assumes the possibility of a state of facts which the jury have no right to find, there being no evidence, it is error." (Holt v. Pearson, 12 Utah 63; Konold v. R. G. W. Ry. Co., 21 Utah 279; Coats v. U. P. R. R. Co., 24 Utah 304; Bowie v. Spaids, 26 Neb. 635.)

The whole defense attempted on the trial of this case was the alleged fact that appellant had been discharged or quit work two days before his injury and had wrongfully remained on the premises for an unreasonable length of time and was, therefore, a trespasser, to whom respondents owed no duty except not to wantonly or intentionally injure him. This instruction which virtually said to the jury that they were at liberty to find that appellant had, for two days been a mere loiterer, was calculated to excite in the minds of the jurors a prejudice against appellant and was highly prejudicial to him. The question of whether appellant was a trespasser, a licensee, an employee, or a passenger, was one of fact for the jury and not one of law for the court, even though the jury should find that he had remained there a day or two after getting his time check. He had not been paid off. He had not even been furnished with transportation to Ogden, where it was necessary for him to go to receive his pay. Did he not have a right to remain there until paid off, or at least until furnished transportation to Ogden. And under the circumstances he was certainly entitled to as much care as an employee. Or since he was at the station with a pass good on the expected train, was he not a passenger? He was certainly, at least, a licensee. A railroad company may permit children or others to play or loiter upon its grounds and premises, and if so, they would not thereby become trespassers, but would be licensees. (Branson's Admr. v. Labrot, 81 Ky. 638, 50 Am. Rep. 193; Emery v. Exposition Co., 62 Minn. 460, 57 N.W. 1132; Clarkin v. Bessemer Co., 65 Minn. 483, 67 N.W. 1020.)

It is not the law that if appellant was a trespasser, that he was required to prove that his injuries were willfully, recklessly or maliciously inflicted. (Morgan v. O. S. L. Ry. Co., 27 Utah 92, 100.)

This court in a more recent decision has expressly laid down the doctrine that "a trespasser is not required to allege or prove that the injury complained of was either willfully, wantonly or intentionally inflicted, except when he seeks to recover exemplary damages." (Klenk v. O. S. L. R. Co., 27 Utah 428, 432.)

The principle has been clearly recognized in this court in Young v. Clark, 16 Utah 42; Corbett v. O. S. L. R. Co., 25 Utah 449, 453, and Hyde v. U. P. Ry. Co., 7 Utah 356. In the first of these cases it is held that where the presence of people upon a railroad track or bridge is probable, or might reasonably be anticipated, "those in control of passing trains are bound to use reasonable diligence and precaution to prevent injury to those who might be thereon, even though they were trespassers."

For an able discussion of this question see Bostwick v. Minneapolis & P. Ry. Co. (N. D.), 51 N.W. 781. In that case it is held that to recover damages for injuries inflicted on a trespassing animal it is not necessary to show that the injury was willfully or wantonly inflicted, and it is stated, page 784, that "possibly there is an inclination to adopt somewhat broader grounds of liability, where the injury is to person instead of property," and certainly such ought to be the rule.

Brown v. Railroad Company, 50 Mo. 461 (11 Am. Rep. 420), was an action for damages for personal injuries by being struck by one of defendant's cars at a place other than a public crossing. Held, "that notwithstanding the fact that plaintiff was not rightfully on the track, at the place of the injury, yet, if the injury might have been avoided by the use of ordinary care and caution by the defendant, the latter was liable therefor." Held further, that "the degree of care required of persons having charge of locomotives and cars, upon tracks in towns, varies according to the circumstances of the case, and must be proportioned to the danger to be apprehended of inflicting injuries upon others." More correctly speaking, ordinary care at least, is always required, but what is ordinary care depends on the circumstances of the case, and is a question of fact for the jury. If the circumstances are such that a reasonably prudent person might reasonably anticipate injury to another, by the doing or omitting to do some act, then the doing or omitting to do such act, shows a want of ordinary care and constitutes actionable negligence, without regard to whether the injured party is or is not a trespasser. (Meeks v. Southern Pacific Co., 56 Cal. 513, 38 Am. Rep. 67; Kline v. C. P. R. R. Co., 37 Cal. 400; Needham v. R. R. Co., 37 Cal. 409; Isbell v. Railroad Co., 27 Conn. 304; Cottrell v. Southern Ry. Co. [Miss.], 32 So. 1, 2 R. R. C. 641; Way v. Chicago R. I. & P. Ry. Co., 73 Iowa 446, 35 N.W. 525.)

There is not a syllable of testimony in this record to show that appellant, even if not rightfully on the premises, was other than a mere technical trespasser, hence under repeated decisions of this court this instruction did not correctly state the law applicable to this case. (Everett v. O. S. L. R. Co., 9 Utah 340; Love v. Salt Lake City; 13 Utah 91-97; Clarkin v. Bessemer Co. [Minn.], 67 N.W. 1020; Sanders v. Reister [Dak.], 46 N.W. 680, 684.)

It is error to give an instruction not based on the evidence. (Konold v. R. C. W. Ry. Co., 21 Utah 379; Coats v. U. P. R. Co., 24 Utah 304.)

And where an erroneous instruction is given the error will not be cured by another correctly stating the law. (Konold v. R. G. W. Ry. Co., 21 Utah 379.)

In conclusion we submit: First. That under the repeated decisions of this court and the settled rule in this State, appellant is entitled to a reversal of the judgment on the grounds of surprise, because of the false statements of the juror Finn made on his voir dire. Second. That the rule is firmly established in this State and is not now open to question, that even a trespasser is not required to allege or prove that his injuries complained of were willfully, wantonly or intentionally inflicted, where he seeks to recover compensatory damages only. (Klenk v. O. S. L. R. Co., 27 Utah 428; Everett v. O. S. L. Co., 9 Utah 340; Lowe v. Salt Lake City, 13 Utah 97; Corbett v. O. S. L. R. Co., 25 Utah 453; Young v. Clark, 16 Utah 42.) And this doctrine is supported by reason and the great weight of authorities. (Shearman & Redfield on Negligence, 97, 98; 21 Ency. of Law [2 Ed.], 459, 460, 470, 471, and authorities supra.)

P. L. Williams and Geo. H. Smith for respondents.

RESPONDENT'S POINTS.

Considering the record in the case, we submit and insist that neither of the cases cited from this court from 23, 24 and 26 Utah justify the contention that is made here that would warrant a reversal of this case upon the assumption that Finn was a biased and prejudiced juror. We think the true rule in this class of cases is well illustrated by Southern Railroad Co. v. Oliver, from the Court of Appeals of Virginia, reported in 35 American & English Railroad Cases, new series, page 695. This particular question is dealt with in the opinion of the court at page 703.

We submit that the evidence shows conclusively that the plaintiff was a mere loiterer upon defendant's premises. So that we say there was justification in the court charging that if he was loitering about the place, and which he was beyond all question, and eating free meals at the company's boarding cars, he was not entitled to recover for injury unless there was evidence that it was...