Johnson v. Rio Grande Western Railway Co.

• Decision Date: 15 March 1899
• Citation: 19 Utah 77,57 P. 17
• Court: Utah Supreme Court
• Parties: JAMES P. JOHNSON, APPELLANT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT

57 P. 17

19 Utah 77

JAMES P. JOHNSON, APPELLANT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT

Supreme Court of Utah

March 15, 1899

Appeal from the seventh Judicial District, Carbon County, Hon. Jacob Johnson, Judge.

Action by plaintiff against defendant for damages for personal injuries alleged to have been inflicted by the negligence of defendant.

From a judgment of non-suit plaintiff appeals.

Affirmed.

Messrs Powers, Straup & Lippman for appellant.

It is the duty of those in charge of a train of cars to give signals and warnings independent of and not prescribed by statute, when in the exercise of reasonable care the same ought to be given for the safety of others. English v. R R. Co., 13 Utah 407; Ives v. Grand Trunk R. R. 144 U.S. 419; Schmitz v. R. R. Co., 23 L.R.A. 250; Erickson v. St. Paul & Duluth R. R., 41 Minn (43 N.W.), 332, 5 L.R.A. 786.

Backing a train without observing proper lookout is negligence. Railroad Company v. Shearer, 58 Ala. 272; Dunkman v. Wabash, etc., R. R., 95 Co., 272; Forley v. Chicago, etc., R. R., 56 Iowa 337; McMarshall v. R. R. Co., 80 Iowa 757.

Appellant was at place where he had a right to be, and where of necessity he had to be in order to perform his work. Whether he was or was not guilty of negligence was a question of fact for the jury and not for the court. Continental Improvement Co. v. Stead, 95 U.S. 161.

Plaintiff had the right to rely that in the running of trains and cars along and upon the track where he was at work, that respondent would use due care in giving him signals and warnings of the approach of cars, and especially that the customary and usual signals would be given. Anderson v R. R. Co., 8 Utah 128; Robinson v. W. P. R. R. Co., 48 Cal. 409; Solon v. R. R. Co., 13 Nev. 106; Ernst v. H. R. R. R., 39 N.Y. 64; Tabor v. Mo. V. R. R., 40 Mo. 353 (2 Am. Rep. 517); R. R. & R. R. R. v. Triplet, 38 Ill. 176; Chi. & A. R. R. v. Elmore, 67 Ill. 176; Rawson v. Chi. & S. P. R. R., 62 Wis. 178.

Even though appellant might have been negligent in the first instance in not looking at the particular and critical moment, nevertheless, respondent was still liable for the injury if it could have prevented it by the exercise of reasonable care, after discovering the danger surrounding appellant, or if it carelessly failed to discover it when it could have done so in the exercise of ordinary care. Esrey v. R. R. Co., 103 Cal. 541; Hall v. Ry. Co., 13 Utah 243; Thompson v. Salt Lake R. T. Co., 52 P. 92; Dunkman v. Wabash, etc., R. R., 4. S.W. 670; Pickett v. Wilmington, etc., R. R., 30 L.R.A. 257; Smith v. N. S. R. R., 5 L.R.A., 287.

Whether respondent was guilty of negligence, or whether appellant was guilty of negligence, or whether respondent, in the exercise of reasonable care, could have avoided appellant's negligence, if any, were questions of fact for the jury. Wright v. So. P. Ry., 14 Utah 383; Wines v. Ry. Co., 9 Utah 228; Olsen v. R. Co., 9 Utah 129; Smith v. R. Co., 9 Utah 141; Wilson v. Min. Co., 52 P. 626; Chapman v. Ry., 12 Utah 30; Reese v. Min. Co., 49 P. 824; Ives v. Ry. Co., 144 U.S. 428; Handley v. Min. Co., 49 P. 295.

Messrs. Bennett, Harkness, Howat, Bradley & Richards for respondent.

Under the circumstances of the case (as indicated by the evidence) the trainmen had the right to believe that plaintiff was paying attention to his own safety and to act upon that belief. Aerkfetz v. Humphreys, 145 U.S. 418; Rangley v. Southern Ry. Co., 30 S.E. 386; Telfer v. R. Co., 30 N.J.L. 188, 204; Daly v. Detroit, etc., Co., 63 N.W. 73.

The defendant is charged with negligence, and is asked to respond in damages to the plaintiff. To make a case against it, so there is a question of fact to go to the jury, there must be evidence in the case that fairly tends to prove that the defendant was in fact guilty of negligence toward the plaintiff and that the negligence shown caused, or contributed to, the plaintiff's injury. To determine the question, the jury would naturally inquire, Where was the plaintiff at the time, with reference to the row of upright timbers, and how long he was in a position that rendered him liable to be struck before he was struck? The jury could not get any information upon these subjects from the evidence. It would simply be a matter of speculation and conjecture. But the defendant's liability can not be made to rest upon speculation and conjecture; it must rest upon proof of negligence, and proof that the negligence caused the injury to the plaintiff. Sorenson v. Paper Co., 56 Wis. 338, 341, 342; Dubbins v. Brown, 119 N.Y. 188, 194, 195; Cosuilch v. Oil Co., 122 N.Y. 118; Cochrane v. Dinsmore, 49 N.Y. 249.

Under the circumstances of the case plaintiff was guilty of contributory negligence. Stacklie v. R. Co., 75 N.W. 734; Brady v. R. Co., 39 At., 186; Missouri, etc., Co. v. Mosely, 57 F. 923, 925; Telfer v. R. Co., 30 N.J.L. 188; Powell v. Steel Co., 63 N.W. 573.

Where the facts are undisputed and but one reasonable inference can be drawn therefrom, whether there was contributory negligence on the part of the plaintiff, is a question of law for the court. Bunnell v. Ry. Co., 13 Utah 314, 322; Butte v. P. V. Coal Co., 47 P. 77; Fowler v. P. V. Coal Co., 52 P. 594; Warmell v. R. Co., 79 Me. 397; Schevers v. Depot Co., 126 Mo. 665; Hilsenback v. Gubring, 30 N.E. 580; Apsey v. R. Co., 47 N.W. 513; Naylor v. Ry. Co., 53 Wis. 661; Kilroy v. Foss, 161 Mass. 138.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

In this case the plaintiff alleges in his complaint that the defendant negligently backed a train of cars up its track in the canon, to Winter Quarters where plaintiff was employed without keeping a sufficient or proper lookout, and failed to ring the bell or blow the whistle, or give any warning of the approach of the train, and failed to have a man at the rear end, and failed to stop the train after it was seen that the plaintiff was in danger, by reason of which plaintiff was injured. The answer denies every allegation of negligence charged against the defendant, and alleges that the injuries to plaintiff, if any, were caused by the plaintiff's own negligence in failing to use reasonable care to avoid the train. The testimony in the case tends to show that Winter Quarters is about a mile or a mile and a half from Scofield; that the canon from Winter Quarters to Scofield is narrow; that there are many dwelling-houses along the side of the track on both sides from Winter Quarters to Scofield, that there is a public road along the side of the track; the track was up a steep grade, and at Winter Quarters was about six per cent grade; that at Winter Quarters there were four tracks, one south and two north of the main track, over which was constructed a trestle work from one side to the other of the canon; this trestle was about twenty feet high, and from twenty to thirty feet wide, and was supported by 12 x 12 timbers four or five feet apart and placed within about two and a half or three feet from the main track, and were braced by cross timbers; that hand cars loaded with coal from the mines on both sides of the canon were run over and upon the trestle, and were dumped through chutes into cars placed on the track underneath the trestle; the side tracks on the north connect with the main track at Parmalee's house, about 150 yards below the trestle, and the one on the south, at Three Throw, about 400 or 500 yards below the trestle; usually the train reached Scofield at about 1:30 o'clock P. M., sometimes at 4 o'clock, making two trips a day to Winter Quarters; the trains were usually run backwards up the canon: generally, but not always, they had been in the habit of ringing the bell and whistling at Parmalee's house and at Three Throw; that sometimes they would blow the whistle and ring the bell there, and sometimes they would not; that an elevator used for crushing coal was from forty to sixty feet northeast from the trestle and made considerable noise at the time in question. On the 26th day of October, and several days prior thereto, appellant was working for the Pleasant Valley Coal Company at the trestle, shoveling waste and dirt from between the main line and timbers into a car standing on the south side track, which car was placed there by respondent for that purpose; that the crew of the train approaching him could see him about 200 yards off had he been on the track; that plaintiff did not hear the train at the time in question, and his hearing was good; that a day or two before the accident, when plaintiff was put to work there, Mr. Johnson, the foreman of the Pleasant Valley Coal Company, told appellant to look out for the trains; that the accident happened between four and five o'clock in the afternoon; that the appellant was left-handed, and could not shovel right handed, and therefore had to stand with his back down the canon, facing opposite the direction the train came; that he was at work under the trestle, about even with the first timbers or a little past the south side of the main line, and near the edge from the direction the train came; that while at work appellant had watched for the train and looked back every minute or so; that on the 26th day of November, between four and five o'clock, respondent backed a train of from eight to twelve cars up the canon at a pretty good rate without blowing the whistle or ringing the bell, and struck and injured the plaintiff; that the elevator was from forty to sixty feet from the trestle, and forty feet north from the main track; that the elevator was used to carry coal from the chute where it was dumped; that Three Throw is about 500 feet east of the trestle; that there is a curve in the track half way between Three Throw and the trestle; that...