Johnson v. Union Pacific Railroad Co.

• Decision Date: 13 March 1909
• Docket Number: 1973
• Court: Utah Supreme Court
• Parties: ALFRED S. JOHNSON, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

100 P. 390

35 Utah 285

ALFRED S. JOHNSON, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

No. 1973

Supreme Court of Utah

March 13, 1909

APPEAL from the Third District Court, Salt Lake County.--Hon. T. D Lewis, Judge.

Action to recover damages for personal injuries received by plaintiff while a passenger on defendant's train. From a judgment for plaintiff, the defendant appealed.

AFFIRMED.

P. L Williams, G. H. Smith and John G. Willis for appellant.

APPELLANT'S AUTHORITIES.

The court erred in permitting evidence of non-experts as to the plaintiff's condition. (Myers v. Mining Co., 28 Utah 96; Black v. Telephone Co., 26 Utah 451; Jensen v. McCormick, 26 Utah 142; Nichols v Railroad, 25 Utah 240; Stoll v. Mining Co., 19 Utah 271; Wooley v. Maynes-Wells Company, 18 Utah 232; Reese v. Mining Co., 17 Utah 489; Saunders v. Southern Pacific Company, 15 Utah 334; Hamer v. Bank, 9 Utah 215; Forwarding Company v. Insurance Co., 8 Utah 41; 16 Cyc., pp. 25 and 26.)

Persons qualified by experience with reference to railroad matters, are held to be competent to testify as experts to the cause of an accident and whether it could have been prevented or not. (17 Cyc. 240; Brownfield v. Railway 107 Iowa 245, 77 N.W. 1038; Seaver v. Railroad, 14 Gray 466; Railroad v. Thompson, 75 Tex. 501, 12 S.W. 742; Railroad v. Sherman, 53 S.W. 386; Donahoe v. Railroad, 159 Mass. 125, 34 N.E. 87; McCray v. Railroad, 89 Tex. 168, 34 S.W. 95; Railroad v. Craig, 53 N.E. 1033; Railroad v. Croskell, 25 S.W. 486; Railroad v. Watson, 190 U.S. 287; 1 Wigmore on Evidence, chap. 22, secs. 555 to 571.)

Messrs. Booth, Lee & Badger for respondent.

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

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Alfred S. Johnson brought this action to recover damages for personal injuries received by him while traveling as a passenger on defendant's line of railroad between Denver, Colo., and Kansas City, Mo. It is alleged in the complaint that defendant was negligent in failing to exercise reasonable care in inspecting, propelling, and handling the car in which plaintiff was riding as a passenger; that it failed to exercise reasonable care in maintaining and inspecting the track, rails, ties, and roadbed of its said line of railway, and carelessly and negligently permitted its said track, rails, ties, and roadbed to be out of repair, and to be in an unsafe condition; that defendant carelessly and negligently propelled and handled the car in which plaintiff was a passenger at a dangerous and unsafe rate of speed, and that by reason of the aforesaid carelessness and negligence said car was derailed and thrown from the track and roadbed and rolled down an embankment, throwing plaintiff violently about in said car, "so that he was greatly and permanently injured, hurt, cut, bruised, wounded, and injured in his face, neck, throat, chest, limbs, and other portions of his body; . . . that in consequence of said injuries he became, and was, and is, sick, sore, and lame and disordered and permanently injured, and suffered great and permanent pain and agony in body and mind, and a severe and permanent injury of his voice and vocal organs." The defendant answered, denying generally the foregoing allegations of negligence. A trial was had, which resulted in a verdict in favor of plaintiff in the sum of $ 16,500. To reverse the judgment rendered on the verdict defendant prosecutes this appeal.

The facts disclosed by the record are about as follows: Plaintiff is an attorney at law of Providence, R. I. At the time of the accident complained of he was thirty-nine years of age, and for about twelve years prior thereto had been actively engaged in the practice of law. On August 20th, 1904, he, in company with about fifty-six other persons, started on a trip (excursion) to San Francisco and return. This party traveled in two Pullman cars, which had been furnished them for their occupancy on the entire journey. They were on their return trip, traveling between Denver and Kansas City, September 19th, 1904, when the accident complained of occurred. The plaintiff was at that time seated with others in the smoking compartment of the car Kara, engaged in a game of cards. This car was the last or rear car in the train. Immediately in front of the Kara was the car Polynesia, and the Amsterdam was in front of, and next to, the Polynesia. At a place some five or six miles west of Junction City, Kan., the hind wheels of the rear truck of the Amsterdam left the track, and immediately thereafter the Polynesia and Kara were completely derailed. From the point where the cars left the track "eastward [quoting from appellant's statement of the case] for a short distance there were flange marks on the ties, some of which were cut clear through and broken off. Then for a distance of some two hundred feet or more the track was all torn to pieces, the ties being broken, torn from the rails, and bunched up, until the Kara was torn loose from the forward car, after which it turned over . . . and down the bank of the fill." About one hundred feet east from the point where the Kara overturned, the Polynesia broke loose from the rest of the train. There was a curve in the track where the wreck occurred, and some repairs were being made at that point. The old ties were being removed, and new ties put in their place. T. J. Gallagher, who was section foreman, and in charge of the work, testified as to the condition of the track at that point on the day of the accident, as follows: "It was raised, but not finished. Ballast had been tamped down under the ties, but no filling had been placed between the ties. The track at the point of the accident was like sticks on the top of a table. It was what we would term a 'skeleton track.' Just at that hour [time of accident] the ties put in that day were not spiked until after the wreck." On cross-examination he further testified: "The track, where the car left the rails, and where the Kara went over the embankment, had been raised. . . . The ties were very much decayed and broken, and the roadbed was all loose. The decayed condition of the ties extended clear through them, and there was about twelve or fifteen poor ties to one good one. I could pick a tie to pieces with my fingers. I did this with several ties--five or six, probably a dozen." And another witness testified: "The ties were very poor. They were rotten, so that I dug my finger nail into them without any trouble at all. The ties were so rotten that the spikes could not get a firm hold in many instances." Some five or six other witnesses testified to substantially the same facts respecting the condition of the ties as those whose testimony we have quoted. Pieces of some of the old ties that were torn up and broken in the wreck were made exhibits in the case, and these exhibits substantiate all that is said by the witnesses in regard to the rotten condition of the ties. In fact there is no substantial conflict in the evidence on this point.

Defendant's most important witness on this feature of the case testified in part as follows: "Q. You heard the testimony read here with reference to the ties being rotten, and all that sort of thing? A. I did. Q. Were any ties that constituted part of the roadbed in the condition as you heard described here? A. Why some of them, of course, were, naturally, somewhat decayed, because they were constantly decaying." A physician and surgeon by the name of R. Morton Smith, who was with plaintiff in the smoking compartment of the car Kara at the time it was derailed, and who assisted in dressing his wounds after he was taken from the wreck, testified as to the nature and extent of the injuries received by plaintiff as follows: "I was conscious all the time and could follow the movements the car made in turning over. I saw Mr. Johnson [plaintiff] immediately after the car stopped. As he got up I saw he was bleeding very profusely from his throat, and a long cut was visible along the left side of his neck, and the blood was running down over his clothes very freely. . . . Mr. Johnson was taken out of the car through the window, which was then the top of the car, . . . and assisted to the ground. On reaching the ground we helped him up the bank, which I would judge was some fifteen or eighteen feet high, and then along the track some distance until we came to the car Polynesia. We took him up the steps of the Polynesia, during which time he became unconscious. We laid him in the aisle of the car. . . . At that time he was in a collapsed condition. He was pulseless and the indications were he was dying. He appeared to be dead at that time. We gave him a hypodermic injection of strychnine, and after a time he recovered. The external jugular vein was severed. That vein lies down the side of the neck. . . . The external jugular was plainly visible. . . . Mr. Johnson was unable to speak at that time. I think it was a couple of days before we could tell what Mr. Johnson was saying when he whispered. Mr. Johnson's physical collapse was due to loss of blood and shock. . . . His throat would fill with mucus, and he would have trouble in trying to get rid of it. He expectorated bloody mucus from his mouth. That continued from Monday, the time of the injury, until Thursday after midnight, and that is as far as I know about it [On this date witness parted company with plaintiff.] He could not speak at that time, and still had trouble with his breathing. . . . Besides the cut in his throat Mr. Johnson had a bruise on the forehead, a cut on the chin, and some bruises on the chest and on his knees. . . . While on the trip after the accident he could swallow a part of a teaspoonful of water, beef juice, and malted milk. . . . The fact...