Jensen v. Oregon Short Line R. Co.

• Decision Date: 18 January 1922
• Docket Number: 3673
• Court: Utah Supreme Court
• Parties: JENSEN v. OREGON SHORT LINE R. CO

204 P. 101

59 Utah 367

JENSEN v. OREGON SHORT LINE R. CO

No. 3673

Supreme Court of Utah

January 18, 1922

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by Charles Jensen against the Oregon Short Line Railroad Company. Judgment for the plaintiff, and defendant appeals.

REVERSED, and new trial granted.

George H. Smith, J. V. Lyle, and R. B. Porter, all of Salt Lake City, for appellant.

B. N C. Stott, of Salt Lake City, for respondent.

THURMAN J. CORFMAN, C. J., and WEBER and FRICK, JJ., concur. GIDEON, J., concurring in the order.

OPINION

THURMAN, J.

On March 14, 1917, plaintiff's son, Rulon Jensen, 14 years of age, was run over and killed by a railroad train operated by defendant company at Idaho Falls, in the state of Idaho. The accident occurred at a point where defendant's railroad crosses a street known as G street and at about the hour of 8:15 p. m. of the date above mentioned. The locomotive was attached to several cars in the rear and was pushing a rotary snowplow in front. The company's employees, during the day of the accident, had been cleaning snow from the track and were returning to the depot at Idaho Falls. The rotary was equipped with a cab or lookout in front, and there was evidence tending to show that it covered 9 1/2 inches more space in width on each side of the track than a locomotive engine. The train that struck and killed deceased was running south on what is known as Boulevard street. There were four tracks running parallel on said street, and deceased was struck by a train running on the track farthest east.

It is alleged by plaintiff that defendant was negligent in operating its train in the following particulars: (1) In pushing the snowplow in front of the engine; (2) in operating the train at a high rate of speed, to wit, 20 miles an hour; (3) in failing to keep a lookout for persons on or near, or about to cross, its tracks at said crossing; (4) in failing to keep its locomotive and cars under control so that the same might be stopped in time to avoid injury to any person crossing or about to cross the street; (5) in failing to blow the whistle or ring the bell of the locomotive engine in approaching said crossing; (6) in failing to give any timely warning of the approach of said train; (7) in failing to have a member of the train crew upon the front of said rotary car while the same was being pushed through the town and across said crossing.

Defendant denied that it was negligent as alleged in the complaint or at all, and affirmatively alleged that deceased was negligent in attempting to go upon the crossing without stopping, listening, or looking, and in approaching dangerously near to the crossing and standing upon the same without looking or listening for an approaching train.

The jury to whom the case was tried found for the plaintiff, and judgment was entered accordingly. Defendant thereafter moved for a new trial, which motion was denied. Defendant appeals to this court and relies on numerous exceptions taken to the rulings of the trial court during the progress of the cause.

There was no one present with deceased when the accident occurred except a boy companion by the name of Priest, of about the same age or a little older. The testimony of Priest, given in behalf of plaintiff, was to the effect that he and the deceased were attending school together in Idaho Falls, and that they frequently associated together as companions; that they were in the same grade at school, but deceased was more advanced than witness and frequently assisted him in the preparation of his lessons; that on the evening of the accident, a few minutes before 8 o'clock, deceased came to the home of witness to assist him in his arithmetic; that they were together at witness' home about 15 minutes. They then started to go to a show six or seven blocks distant, west of defendant's railroad. Both witness and deceased lived on the east side and consequently were compelled to cross the railroad to get to the show. The G street crossing was the most convenient, so they went in that direction. As they approached the crossing they saw a freight train of about 50 cars moving north on the track farthest west. They were then about 75 feet from the crossing. They were talking and walking along very slowly. There is a slight upward grade to the north. The freight train was running up the grade and making considerable noise. It was snowing just a little and was very dark. When the boys arrived at or near the east rail of the east track they stopped. Witness stood about 5 feet from the track. Deceased was in front of witness, a little to one side. Their shoulders nearly touched. Witness says he was looking west at the moving freight train on the west track. He judged deceased was also looking in the same direction, but did not know whether he was or not. While in this attitude deceased was struck by the rotary. At the time it looked like a cloud to witness, but immediately after he saw it was the snowplow. It was in front of an engine and several cars. The engine was in the middle of the train. When deceased was struck he called witness' name. The first light witness observed was from the cab of the locomotive. He saw no light cast down in front of him nor heard any bell ring. His sight and hearing were good. Both boys were standing when deceased was struck. Witness heard no sound, other than the freight train he was observing, until deceased called his name. The train that struck deceased was running 10 or 12 miles an hour, and never slowed up till it reached the depot several blocks south of the crossing. Witness ran after the train, but was unable to catch up with it until it stopped. A gentleman stepped off the caboose, and witness informed him of the accident. They searched for the body and found it about 25 or 30 feet behind the caboose, lying between the tracks. Deceased's clothing was badly torn and was pulled up over his head. One leg was severed from his body. He was dead when they found him. He had been dragged from the crossing south 1,200 or 1,400 feet.

On cross-examination the witness testified, in substance, that he knew when he reached the track; that he had frequently crossed there. He had seen deceased very often. In the evening he would see him at his home. They were frequently out together. He helped deceased to take care of his father's stock. The boys went out nearly every night. The distance from the center of the east track to the next track, going west, is 14 feet, from the second to the third is 44 feet, and from the center of the third to the center of the fourth is 16 feet. There was no light on the front of the rotary or witness would have seen it. He stopped where he did because he did not wish to go on the right of way. It was safer where they stopped than it would have been on the 44-foot space. Witness and deceased had frequently crossed at the G street crossing. They were both quite familiar with it. The only reason he and deceased stopped that night at the east track was to let the freight train on the west track go by.

The foregoing is the substance of the testimony of the Priest boy as far as relates to the accident. The witness gave much testimony concerning the location of buildings and structures in the vicinity of the crossing, and also concerning his intimate relations with the deceased. It is impracticable to refer to such evidence in detail, nor is it necessary to a determination of the issues involved. It may be stated once for all that the testimony presented by plaintiff showed the deceased to have been a bright, intelligent boy, both physically and mentally well developed. He was a seventh grade student in the district school, and outside of his school hours helped his father on and about his farm and store, and appeared to have been above the average, in many respects, among boys of his age.

Young Priest was the only witness as to how the accident occurred. No one else, as far as the record discloses, saw deceased alive at any time after he left his home on the evening in question.

We have endeavored to faithfully present the substance of the testimony of the Priest boy because of its vital importance in determining the questions to be decided by the court. He was positive in his testimony to the effect that there was no light on the rotary or he would have seen it, and that there was no warning given of the approach of the train or he would have heard it. He did not, however, claim to have either looked or listened for an approaching train, but, on the contrary, admitted he was giving his attention to the movement of the freight train on the west side of the street.

It conclusively appears from the evidence that the crossing in question is one that is frequently used by a large percentage of the people both in Idaho Falls and the country contiguous thereto. There was a light burning on the west side of the crossing, but Priest testified it would not light the crossing when a train was passing on the west track.

The evidence introduced by defendant was to the effect that none of the employees of the company operating the train saw the boys standing by the track or knew that an accident had occurred until the train stopped at the depot in Idaho Falls.

Leo M Rush, for defendant, testified that he was operating the rotary engine when the accident occurred; that he was in the cab or lookout on the front of the rotary; that he blew the whistle of the rotary for the G street crossing 150 or 200 feet north of the crossing; that they were running between 4 and 6 miles an hour; that there was a headlight on the rotary; and that it was lighted at that time. Witness was looking down the right of way in a southerly...