Jensen v. Denver & R.G.R. Co.

• Decision Date: 30 January 1914
• Docket Number: 2537
• Parties: JENSEN v. DENVER & RIO GRANDE RY. CO
• Court: Utah Supreme Court

138 P. 1185

44 Utah 100

JENSEN v. DENVER & RIO GRANDE RY. CO

No. 2537

Supreme Court of Utah

January 30, 1914

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by John Jensen against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Van Cott, Allison & Riter and M. E. Wilson for appellant.

J. E Darmer and S. P. Armstrong for respondent.

RESPONDENT'S POINTS.

Appellant's track through block eighty-one, where the boy was killed, was notoriously, and constantly used by the people of the neighborhood as a public thoroughfare, of which fact appellant's trainmen were well aware. The boy was a licensee, and not a trespasser. Appellant owed him practically, the same duties as though the injury occurred at a public street crossing. (Teakle v. Ry., 32 Utah 276, 10 L. R. A. (N. S.) 489, 90, 1, 3; Young v Clark, 16 Utah 42, 49; Christensen v. Ry., 29 Utah 192, 201; Gesas v. Ry., 33 Utah 156, 168; Palmer v. Ry., 34 Utah 466, 480, 498.) The train was running contrary to the city ordinance, and therefore unlawfully. Such unlawful act was negligence per se. Riley v. Rapid Transit, 10 Utah 428, 434, 440; Ry. v. Donovan, 84 Ala. 141-3, 36, A. & E. Ry. C. 151-3; Wilkinson v. Ry., 37 Utah 110, 121; Palmer v. Ry., 34 Utah 466, 502; 33 Cyc. 793-4.) Appellant's negligence, in running at an unlawful speed was the proximate cause of the injury, if by reason of the excessive speed appellant was unable to stop before inflicting fatal injury. The unlawful speed was negligence per se, after the discovery of the boy's position of extreme peril, as well as before. (Neary v. Ry., 110 P. 226, 236 [Mont.]; Murrell v. Ry., 105 Mo.App. 95.) Appellant cannot excuse itself on the ground of impossibility to stop in time to avoid injury, where its negligence made it impossible. Murrell v. Ry., 105 Mo.App. 88, 91; Sullivan v. Ry., 117 Mo. 214, 23 S.W. 149; Thompson v. Ry., 16 Utah 281, 52 P. 92). The mere fact that the boy was on the track and was struck by the train does not establish his contributary negligence, if the train was running at an unlawful speed. He had a right to assume that the train, even if he knew of its approach or by the exercise of ordinary care should have known of its approach, was running within lawful speed, and to govern himself accordingly, unless ordinary vigilance would have disclosed a faster speed. (Murrell v. Ry., 105 Mo.App. 88, 95, 97; Sullivan v. Ry., 117 Mo. 221; Traction Co. v. Kidd, 79 N.E. 347 [Ind.]). If the boy was guilty of negligence in being on the track without using ordinary care for his own safety, still appellant cannot avail itself of such negligence as a defense, if it was running its train at a speed in excess of the speed limit of the ordinance and for that reason was unable to avoid the collision. (Ballishill v. Ry., 64 Mich. 514; Daffey v. Ry., 19 Mo.App. 380; Sullivan v. Ry., 117 Mo. 214; Winstanly v. Ry., 72 Wis. 375.) Contributory negligence is not a defence, if, notwithstanding the negligence of the injured person, the defendant, by the exercise of reasonable care still could have avoided the injury. (Oliver v. Ry. 13 Colo. App. 543; Ry. v. Canvenesse, 48 Ark. 106; Birrell v. Ry., 23 A. & E. Ann. Cases 1245-6; Bruggeman v. Ry., 23 A. & E. Ann. Cases, 884, Note 891; Holohan v. Ry., 8 Mackay (D. C.) 316; Coasting Co. v. Folsan, 139 U.S. 551; Brickw. Sackett sec. 1958; Everett v. Ry., 9 Utah, 340, 349.) When running at unlawful speed, and seeing the boy on the track 300 to 500 feet ahead apparently unaware of the approaching train, no effort was made to reduce the speed or come down to the lawful limit. On the contrary the engineer kept on pumping steam, increasing the speed, and recklessly continued at the unlawful speed until within a few feet of the boy. It was his duty, on seeing the boy, to reduce his speed within the lawful limit and to have his train under control, in case the boy should not leave his position of danger. (Baumeester v. Ry., 63 Mich. 557.) From any viewpoint respondent was entitled, under the evidence, to a verdict. The jury found the issues for the respondent. The whole matter was for the jury, including negligence of appellant, contributory negligence of the boy, and whose negligence was the proximate cause of the injury. (Everett v. Ry., 9 Utah 340, 349.) There was ample evidence to sustain such findings, and the same are not subject to review in this court.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The plaintiff brought this action to recover damages for the death of his son, fourteen years of age, alleged to have been caused by the defendant's negligence. The plaintiff had judgment. The defendant appeals.

The accident occurred within the corporate limits of Salt Lake City. An ordinance forbade the operation of cars at a speed greater than twelve miles an hour, and required a continuous ringing of the bell on engines in motion. There were two parallel tracks, one the defendant's, the other the Western Pacific Railway Company's, running in an easterly and a westerly direction. The tracks and right of way along the place of the accident had for a long time prior to the injury, with the defendant's knowledge, and without its objections, been used as a pathway by the public, especially those living in that vicinity. The deceased, while walking easterly along or upon the defendant's track in pursuit of an errand for his father, who lived near by, was run over and killed by a train of cars operated by the defendant from the west.

The charged acts of negligence are:

Failure to give warning of the approach of the train; failure of the operatives to observe a proper lookout; operating the train at a rate of speed in excess of the ordinance; operating it negligently, recklessly, and wantonly against and over him without warning or attempting to stop after discovering him in a dangerous position on or near the track; and negligently, recklessly, and wantonly dragging him after he had been knocked down and thrown under the train. The defendant denied the alleged acts of negligence, and pleaded contributory negligence and trespass.

The evidence is much in conflict. As shown by the plaintiff, the deceased, on a clear day in June, and in plain view of the train operatives, was walking on the defendant's track. As one of the witnesses testified, the boy "was going direct up the middle of the Rio Grande (the defendant's) track." He "came along there, just didn't seem to be thinking about anything. He had his head down towards the track, going along the same as anybody else would, I guess, not thinking of anything at all. . . . The boy did not see the train coming up behind him." The witness saw the train coming and endeavored to attract the boy's attention and to warn him off, but was unsuccessful. The train ran from twenty-five to thirty miles an hour. No warning was given of its approach, nor was the speed slackened until within a few feet of the boy. The engineer then gave "two toots" and applied the air. The boy was struck and dragged about sixty-five feet. The train ran about 180 feet after it struck him and before it was stopped. It consisted of an engine and tender, two baggage cars, and three or four passenger coaches. It was late. Had it run not to exceed ten or twelve miles an hour, it could have been stopped within twenty feet; twenty-five miles an hour, within 180 feet. The engineer had a clear view of the boy for more than 400 feet.

As shown by the defendant's evidence, the train did not run to exceed eight or ten miles an hour; signals and warnings were given, the bell ringing continuously. The train was not late. It had but one, instead of two, baggage cars, and was properly equipped with brakes. Though so equipped, and though the track was dry and the grade practically level (eight-tenths of one per cent. upgrade), yet, as testified to by the engineer operating the train, it, running twelve miles an hour, would, on emergency application require 400 feet to stop it; running forty miles an hour, 1000 feet. He further testified that he saw the boy ahead of him about 400 feet, and that "he was on the right of way some place; I don't know where; I couldn't tell because it was on a curve. I saw he was a boy all right. He had his head down walking along with his back towards me. He looked around when I whistled for Fourth West, turned his face. I saw him all the time from that time on until where I struck him. He didn't get out of my view from when I first saw him until we struck him, or until the engine was so close it shut off my view. I could not tell whether he was on my track, or between the two tracks, or on the Western Pacific track. He stepped in so close that I didn't know whether he stepped into the side of the pilot or not; then I whistled, gave these toots, threw on the air, and applied the emergency brake. The appliances were all in good condition. My emergency brake was working on all the cars and on the drivers of the engine. The wheels would not slide on a day like it was that day. I don't think they did. . . . I didn't slow up until the boy stepped in front of me, and then I threw the emergency on. The emergency acts almost like a gun shot. . . . After I turned on the air I ran the length of the engine and a baggage car. That would be a little more than 100 feet. I made just as quick a stop as I could." When the train stopped the boy was found under the rear platform of the baggage car. From that point to the front end of the engine, together with the distance the boy was dragged, was about 170 feet, if there was but one baggage car, and about 220 feet if there were two, the distance in which the the train had moved after it struck the boy and before it was...