Hickey v. Rio Grande Western Ry. Co.

• Court: Utah Supreme Court
• Writing for the Court: STRAUP, J.
• Citation: Hickey v. Rio Grande Western Ry. Co., 82 P. 29, 29 Utah 392 (Utah 1905)
• Decision Date: 11 July 1905
• Docket Number: 1621
• Parties: HICKEY v. RIO GRANDE WESTERN RY. CO

82 P. 29

29 Utah 392

HICKEY v. RIO GRANDE WESTERN RY. CO

No. 1621

Supreme Court of Utah

July 11, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Daniel Hickey against the Rio Grande Western Railway Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Sutherland Van Cott & Allison for appellant.

The evidence does not show that defendant was guilty of any negligence. The rule is that where horses are frightened by noise incident to the use of engines that the railroad company is not liable, unless the noise was both unnecessary and unusual. It is a matter of common knowledge that the exhausting of steam from an engine is something frequently accompanying its movement, and it devolves upon a person conplaining to prove that under the particular circumstances there was no necessity for so doing, and that under the particular circumstances it was unusual.

The testimony does not show that the steam escaped from the cylinder cocks. The burden was upon the plaintiff to established that the steam escaped from some part of the engine under control of the engineer. If the steam escaped from an automatic valve or other appliance not under the control of the engineer, of course the railroad company could not be held guilty of negligence. This rule is well settled. (Ry. v. Simon, 54 S.W. 309; Duvall v. Ry. Co., 49 A & E. R. R. Cas. 313.)

It seems clear from the testimony in the case that the plaintiff utterly failed to prove that the escaped of steam from the cylinder cocks, assuming it to have so escaped, was either unnecessary or unusual. Under such circumstances the court should have instructed the jury to find for the defendant. (1 Rorer on Railroads, page 704.) The right to operate a railroad includes the right to make the usual noises incident to the use of its engines and trains, and it is matter of common knowledge that the exhausting of steam from its cylinder cocks is something very frequently accompanying the movement of engines. (Cahoon v. Ry. Co., 85 Wis 572; Walters v. Ry. Co., 104 Wis. 259; Abbott et al v. Kalbus, 74 Wis. 504, 506.)

The blowing off of the steam must be shown to be unnecessarily, recklessly and wantonly done, or with the intention of frightening a team to enable the plaintiff to recover. (Stanton v. Louisville Ry. Co., 8 So. 798.)

To entitle the plaintiff to recover, it is essential to show that the quantity of steam escaping and the noise made were both unusual and unnecessary. (2 Thompson on Negligence, sec. 1908; Ry. Co. v. Burkhardt, 34 A. 1010.)

And where it is shown by the evidence only that it was unusual to emit steam from the engine at the time when and place where it was emitted, with no evidence tending to show that the noise made was unnecessary, plaintiff cannot recover. (Colman v. Ry. Co., 40 S.E. 247; Ry, Co. v. Black, Id.)

Some evidence must be given of facts and circumstances from which it may be inferred that the doing of the act at the particular time or under the particular circumstances was not in the exercise of due care and prudence. The burden is on the plaintiff to show such special facts and circumstances. (Ry. Co. v. Clarke, 23 L.R.A. 509; 2 Thompson on Negligence, sec 1922.)

There was a safe and an unsafe way of doing the work which he was called upon to do. He voluntarily selected the more unsafe way. The general rule is stated by our own Supreme Court in the case of Fritz v. Electric Light Company, 18 Utah 503: "When there are two or more methods or ways by which a servant may perform his duties and he voluntarily chooses the most hazardous, knowing it to be such, he does so at his own risk." (Goldstein v. Ry. Co., 46 Wis. 404; Gilbert v. R. R. Co., 128 F. 529; Morris v. Ry. Co. 108 F. 747; Dawson v. Railway Co., 114 F. 872; Cunningham v. Ry. Co., 17 F. 882; Jackson v. Crilly, 26 P. 331; Carrier v. U. P. Ry. Co., 59 P. 1075; Russell v. Tillotson, 140 Mass. 201.)

The position which the plaintiff took behind his dray, under the circumstances, was an obviously dangerous one and he was clearly guilty of contributory negligence in taking it without any precautions for his own protection. (Goddard v. McIntosh, 161 Mass. 253; Lord v. Smelting Co., 21 P. 148; Wheat v. St. Louis, 64 L.R.A. 292.)

It is therefore no answer for the plaintiff to say that he was in the railroad yard in the discharge of his duty and that he was absorbed in the work of tying on his load. Every moment he was behind this wagon he was in a position of danger. As a man of years and experience, familiar with his surroundings, he was bound to know this. (Stone Co. v. O'Brien, 40 N.E. 430.) Neither is it any excuse for the plaintiff's failure to pay attention to the approach of the engine that the engine had passed before or that he believed or had reason to believe that his horses would not be disturbed. (Muldowney v. Ry. Co., 36 Iowa 462.)

The railroad company can be held responsible for frightening a team by permitting the escape of steam from its engine only where such escape of steam is both unnecessary and unusual. In 2 Thompson on Negligence, section 1908, the rule is laid down as follows: "It is only where the railway company, through its servants, does something which is both unusual and unnecessary [author's italics] in the conduct of its business, that it is liable to one whose horse takes fright thereat." (Railway Company v. Burkhardt, 34 A. 1010; Colman v. Ry. Co., 40 S.E. 247; Ry. Co. v. Black, Id.) As shown by the authorities already cited, the defendant company could not be held responsible for the escape of steam from an automatic appliance which was outside of the control of the operatives upon the engine. (Ry. Co. v. Simon, 54 S.W. 309; Duvall v. Ry. Co., 49 A. & E. R. R. Cas. 313.)

The rule is well settled, as heretofore stated, that with certain exceptions, within which this case does not fall, the refusal of appropriate instructions upon request constitutes error. (2 Thompson on Trials, sec. 2347, and authorities cited; Sailor v. Barnowski, 60 Wis. 169; Campbell v. Campbell, 54 Wis. 90, 98; Wells v. Utah Construction Company, 27 Utah 524.)

Rogers & Street and W. R. White for respondent.

RESPONDENT'S POINTS.

The jury has found under the instructions of the court that this escape of steam was negligence. It then follows that this escape of steam was both unnecessary and unusual. The definition of negligence renders this conclusion irresistible. (Petersburg Ry. Co. v. Hite, 81 Va. 767.)

Now in the present case we think it clear that the engine, though within the company's yard, was not managed with due regard to the rights of the respondent who was lawfully in the exercise of proper care crossing its track. It does not appear that the engine might not have stopped at a much greater distance from the street where the steam might have been blown of without th danger of frightening horses lawfully crossing the track. (Hahn v. Southern P. Ry. Co., 51 Cal. 605; Weil v. St. Louis and S.W. Ry. Co., 64 Ark. 535; Toledo Ry. Co. v. Harmon, 47 Ill. 298, 95 Am. Dec. 489; Mitchell v. Nashville Ry. Co., 40 L.R.A. 426; Kalbus v. Abbott, 46 N.W. 810; Andrews v. Mason Ry. Co., 42 N.W. 514.) Injury occasioned by steam escaping therefrom, company held liable. (Omaha Ry. Co. v. Clark, 23 L.R.A. 504.)

There must not be an unnecessary emission of steam. The burden of proving necessity was in this case upon the defendant. (Mitchell v. Nashville Ry. Co., 40 L.R.A. 426.) This case held that a presumption of negligence arises from the blowing of a locomotive whistle loudly and repeatedly, under a bridge constantly used by all kinds of vehicles. Defendant has the burden of proving necessity. (Bittle v. A. Ry. Co. [N. J.], 23 L.R.A. 283.)

The appellant was bound to exercise ordinary care to the end of avoiding injury to the respondent while he was engaged in his work. (See Note 46 L.R.A. 58, a full collection of authorities; Newson v. New York Central Ry. Co., 29 N.Y. 383; Note 46 L.R.A. 58. Copley v. Union Pacific Ry. Co., 26 Utah 363.) The above decision clearly sustains the contention of the respondent. In rendering the opinion the court cites the following authorities: Newson v. New York Central Ry. Co., 29 N.Y. 383; Toledo, St. L. & K. C. R. Co. v. Hauck, [Ind. App.], 35 N.E. 573. Cent. Ry. Co. v. Hoffman, 67 Ill. 287; Chicago & N.W. Ry. Co. v. Goebel, 119 Ill. 515, 10 N.E. 369; Pittsburg C., C. & St. L. Ry. Co. v. Ives, [Ind. App.], 40 N.E. 923; St. Louis, I. & E. R. Co., v. Ridge [Ind. App.], 49 N.E. 828; The Joseph B. Thomas, 46 L.R.A. 58, note Burden of proving necessity on defendant. (Mitchell v. Nashville Ry. Co., 40 L.R.A. 426.) Under the law it need not be unusual in order to justify a recovery. (Petersburg v. Hite, 81 Va. 767.)

Judge Thompson on his work on Negligence says, vol. 1 page 351: "Whilst no liability attaches for damages arising from the doing of these acts under proper circumstances, yet it will be different if they are done without necessity, negligently or wantonly. (Toledo Ry. Co. v. Harmon, 47 Ill. 298; Nashville Ry. v. Sarns, 9 Heisk 52; 24 Am. 296; Mitchell v. Nashville Ry. Co. [Tenn.], 40 L.R.A. 426.) Special necessity must be proved by defendant.

The authorities heretofore cited upon the question of escaping steam and the following are respectfully referred to the court; 2 Shearman & Redfield on Neg., par. 426, and cases cited; Patterson, Ry. Accident Law, p. 151, and cases cited; 23 Am. and Eng. Enc. of Law, page 744, and cases cited.

In Leak v. Ry. Co., 9 Utah 246, it is held that a request which gave undue prominence to certain testimony without notice of other testimony, should be refused. This case was afterwards affirmed in the 163 U.S. 280. (Ry. Co. v. Ives, 144 U.S. 433.) So it can be said in the...