Jensen v. Utah Ry. Co.
| Decision Date | 04 November 1927 |
| Docket Number | 4566 |
| Citation | 72 Utah 366,270 P. 349 |
| Court | Utah Supreme Court |
| Parties | JENSEN v. UTAH RY. CO |
Rehearing Denied September 25, 1928.
Appeal from District Court, Third District, Salt Lake County; Wm. S Marks, Judge.
Action by Elva M. Jensen, a minor, by P. J. Jensen, as guardian ad litem, against the Utah Railway Company. From a judgment for defendant, plaintiff appeals.
REVERSED AND REMANDED.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, for appellant.
Van Cott, Riter & Farnsworth. of Salt Lake City, for respondent.
The plaintiff, a child 1 year and 11 months of age, by her guardian brought this action to recover damages alleged to have been sustained by her through the negligence of the defendant. The case was tried to the court and a jury, and resulted in a verdict in favor of the defendant. The plaintiff appeals.
The assignments are numerous. They chiefly relate to the court's charge, and to conduct of counsel for defendant arguing matters to the jury which, as claimed by the plaintiff, were withheld from the jury. We shall refer to only so much of the pleadings and evidence as is deemed necessary to the assignments considered by us.
The child was run over and injured on the defendant's railroad track by a train operated by the defendant. The accident occurred in a little town or settlement called Spring Canyon, in Carbon county, Utah. The theory of the complaint is that, because of numerous dwellings, apartments, cottages, a schoolhouse, a church, post office, and a store and bakery in close proximity to the track, and of a long custom or habit of persons and children living in the vicinity of the accident, and of others, using the track as a footpath in going up and down and across the track with the knowledge and without objection of the defendant, it, among other things, became and was the duty of train operatives, in approaching the settlement and operating trains through it, to observe a lookout for the presence of persons and children upon and along the track in such close proximity thereto as likely to be struck by a moving train and give timely warning of the approach of the train, but that on the day in question the train operatives, in operating a train, negligently failed to observe a reasonable or any lookout for such purpose, failed to ring the bell or give any warning of the approach of the train, and negligently ran over the plaintiff, and so injured her as to necessitate the amputation of both her legs, one above and the other below the knee.
The defendant, by its answer, denied the alleged negligence, averred that the plaintiff was guilty of contributory negligence, and that the parents of the plaintiff were guilty of negligence in suffering and permitting the child "to be on and about the tracks of the defendant, where the said child had no right or license to be, and where it was known by said parents that such child was in great and imminent danger of being struck by engines, cars, and trains."
Much evidence was given by the plaintiff in support of the theory stated in the complaint. In such respect evidence was given to show that the defendant's railroad runs through a winding canyon in the mountains through the small towns or settlements of Peerless, Spring Canyon, and Standardville, but a short distance apart. A wagon road or highway also runs through the canyon parallel with the railroad track. About 100 families live at the settlement of Spring Canyon, who live in apartments, cottages, and other dwellings facing the highway, and between the highway and the railroad track, the outbuildings in the rear being within 10 or 12 feet from the track. The parents of the plaintiff lived in one of the apartments, consisting of 10 apartments. On the other side of the track and a little down the canyon was a schoolhouse, a church, a post office, a store, a bakery, and other buildings. There were no sidewalks. The railroad track was open and unfenced.
At Spring Canyon the wagon road was narrow, at places only of sufficient width to permit two automobiles or vehicles to pass. The surface of the highway on either side was so rugged as not to admit of travel by pedestrians without considerable difficulty. For such reason, and because of the narrowness of the highway and of numerous automobiles traveling it, the highway was considered dangerous to pedestrians, especially children, and thus to a large extent was avoided by them. So pedestrians, including children, living at Spring Canyon and in that vicinity, instead of using the highway, used the defendant's railroad track in going up and down the canyon, and in crossing it to go to the schoolhouse, church, post office, store, and bakery. Most of the men living at Spring Canyon and in that vicinity worked in coal mines near by and in going to and from the mines also used the railroad track as a footpath. So, also, did others in going up and down the canyon. Such habit or custom was general, and existed for many years, as testified to by numerous witnesses on behalf of the plaintiff, and that such use was so made of the track with the knowledge of the defendant, and of its train operatives and without objection from any one.
Evidence was also given to show that at times children played about the track or in such close proximity thereto as to be in danger of being struck by passing trains, especially about a push or hand car left by the defendant just off and along the side of the track and at a sort of a trail leading in the direction of the apartments or houses below. Many of the children of parents living in the apartments and cottages played in the rear of them and in close proximity to the railroad track. Testimony was given to show that the children had no other outdoor place to play.
On the day in question, August 23, 1926, the father of the plaintiff, in the morning, left the apartment house where the parents of the child resided to go to work, as was his custom, in a coal mine near by up the canyon. His family consisted of his wife and two children, the plaintiff and a boy four or five years of age, and a maid. The mother, as she and her husband testified, was ill. In the afternoon of the day in question, and about a half hour before the accident, the mother, who with the plaintiff, was then on the porch, felt faint, as she testified, left the porch with the plaintiff, and went inside to lie down. She thought the maid was in the kitchen or about the premises. The mother, as she testified, as she lay down "dozed off" a short time. There is a controversy as to whether the maid then was about the apartment, or whether she had gone to one of the neighbors near by. In a short time the child strayed from the apartment and went on the railroad track near or opposite the push or hand car, where other children were then playing, and stood, in the middle of the track, when she was struck and run over by the train, between 4 and 5 o'clock in the afternoon on a clear day.
The principal use of the defendant's railroad was to haul coal from mines along the canyon near Standardville, Spring Canyon, and Peerless and other places and to serve persons living in settlements along the canyon.
On the day in question the defendant was carrying down the canyon from Standardville an engine and two empty box cars. The purpose of the trip was to carry the box cars from Standardville to Spring Canyon, where they were to be left, and then the engine to return to Standardville and later bring down loaded cars. In bringing the two box cars down the canyon, the engine was operated backward in front of the two box cars; that is, as the train came down the canyon, the tender of the engine was in advance of the engine running backward, the the two box cars in the rear. As the train thus came down the canyon, the fireman was on the left and the engineer on the right side, facing the front of the engine and the box cars. About 400 feet up the canyon was a curve in the track, the outside of the curve being on the engineer's side.
As the train approached the curve and was rounding it the view of the engineer was obstructed because of the curve, but after the train passed the curve the engineer had a view of the track in the direction in which the train was moving for a distance of about 335 feet to the place where the child was struck. The view on the fireman's side was not obstructed by the curve. He had a better view of the track, and for a longer distance, than had the engineer. On top of the rear box car were the head and rear brakemen and a car inspector. They also had a better view down the track than had the engineer, and as good a view as had the fireman. The train was moving down the track at a speed of about 10 miles an hour. Evidence was given to show that the train could have been stopped within a distance of 35 feet, and that no whistle was sounded or bell rung as the train approached.
The rear brakeman testified that he discovered the child standing on the track between the rails 45 or 55 feet ahead of the tender, just when the rear box car on which he was standing was on or leaving the curve, but that the engine then was on a straight track; that he called the attention of the head brakeman to the situation; that both, as loud as they could, called several times to the engineer and fireman to stop the train, that a child was on the track; that the brakeman also pounded the box car with clubs to attract the attention of the engineer and fireman, but to no avail because the noise of the engine, as they testified, prevented hearing the shouting and pounding of the brakemen.
Other witnesses testified that they were in one of the apartments and...
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