Hyde v. Union Pacific Railway Co.

• Citation: 7 Utah 356,26 P. 979
• Court: Supreme Court of Utah
• Decision Date: 05 June 1891
• Parties: WILLIAM E. HYDE, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

26 P. 979

7 Utah 356

WILLIAM E. HYDE, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 5, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

The instructions of the court upon the point of negligence on the part of the child and its parents were as follows: "Now another claim is made in this case, and that is that the agents of the company, that is, the engineer and fireman upon the train, as they approached this child, either did or could have seen it, * * * and if you should find, as a matter of fact, that they did see this child; or if they saw an object and from the proximity of settlements, and the places where there were children, they ought, in the exercise of good judgment and sound discretion, to have known it was probably a human being; or if approaching railroad crossings where there were houses and people residing close by, they failed to keep such a look-out as they ought to have kept, and that they ought to have seen that child, and run upon it, then the plaintiff would have a right to recover in this case, no matter whether he contributed to the injury by his negligence or not, because the negligence would be wanton and was careless." The court further charged the jury that the negligence of the parents would bar a recovery, and that their care must be proportioned to the circumstances and the place. No question seems to have been made upon the point that the court charged that the husband could recover for both parents' damages.

Affirmed.

Mr Parley L. Williams, for the appellant.

Mr Joseph L. Rawlins, for the respondent.

ANDERSON, J. ZANE, C. J., BLACKBURN, J., and MINER, J., concurred.

OPINION

ANDERSON, J.:

This is an action by the plaintiff to recover damages for the death of his infant son, aged between four and five years, whose death is alleged to have been caused by the negligence of the defendant. The plaintiff lived at Honeyville, a small village on the line of the defendant's road, and was in the employ of the defendant as a section hand at the time of the accident; his house being situated about a quarter of a mile from the railroad track. On the day of the accident the plaintiff was at work on the line of the defendant's road several miles from his home. The mother of the child was away from home, and the evidence fails to disclose when she went away, or whether the child was left in the care of any one. There were five children in all in the family, but their ages are not shown by the evidence. The child wandered away from home, and went to sleep between the rails of the track of the defendant's road, at a point in the village of Honeyville near where a public highway crosses the railroad track, upon which there is considerable travel, and was run over by a train of cars and killed. There was a store close by, and a school-house not far off, and children were frequently on and along the track at this point. The accident occurred about noon, on a clear day in the month of July. The train was a work train, composed of a locomotive, tender, and ten cars, and was running with the tender in front of the engine.

Both the engineer and the fireman testified that they saw the child when it was from 200 to 300 yards away, but thought it was a piece of cloth or paper, and could not tell what it was until they got within about thirty feet of where it lay, when they discovered it was a child by seeing its hair, but that it was then too late to stop the train before reaching it. They further testified that they did not slacken the speed of the train when they saw the object on the track until they ascertained it was a child, when they immediately did all they could to stop the train as seen as possible, but that the train could not be stopped in a less distance than about 125 feet. At the trial a witness was asked the following question: "I will ask you if you observed the effect, if any, which the death of this child had upon his father when you saw him there." The witness was permitted to answer this question over the objection of the defendant, his answer being as follows: "I noticed he was very much grieved, from his moaning and speaking of his child." Permitting this question to be asked and answered, together with the instructions of the court on the measure of damages, is claimed to be contrary to the rule laid down by this court in Webb v. Railway Co., ante, 7 Utah 17, 24 P. 616, and the case of Munro v. Dredging, etc., Co., 84 Cal. 515, 24 P. 303.

The instructions of the court on the subject of the measure of damages were as follows: "Now, if you pass both of these questions in favor of the plaintiff, then you would come to the question of damages,--the amount that should be assessed in favor of the plaintiff for the damages that he has sustained; and in determining that question, you are to take into consideration all the circumstances of ...