Keim v. Gilmore & Pittsburg R. R. Co.

Decision Date05 March 1913
Citation131 P. 656,23 Idaho 511
PartiesSAMUEL T. KEIM, Respondent, v. GILMORE & PITTSBURG R. R. CO., Appellant
CourtIdaho Supreme Court

PERSONAL INJURY - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - TRESPASSER AND LICENSEE-PRIMARY CAUSE OF INJURY-DUTY TO TRESPASSER-IRREGULAR VERDICT.

1. Where K. was walking from a market to his residence and was following a footpath across a railroad right of way, and walking down the side of the track at a reasonable distance from the track and along the station grounds within forty or fifty feet of the depot and in the same direction as a moving train, and was exercising reasonable care to avoid danger or injury, held, that the railroad company owed him the duty to exercise reasonable care and take reasonable precaution against inflicting an injury upon him.

2. A greater and higher degree of care and diligence is required of a railroad company to protect even a trespasser against injury, where such person is upon its right of way at a station or depot grounds, where the company transacts business with the public and where it invites persons to enter its premises, and has reason to expect at all times that there will be persons upon its grounds and premises than it owes to a mere trespasser at an unfrequented place.

3. Where a railroad company has attached to a train of cars a steam shovel car and hauls the same over its road with jackarms extending to a distance of from eleven to twenty-two inches beyond the ordinary width of cars and beyond the sides of such car, the company is liable for damages inflicted by reason of the jackarm striking a truck on a station ground and hurling it upon a passing pedestrian. In such case, the railroad company set a danger in motion of which the pedestrian had no notice or knowledge and against which he could not reasonably guard.

4. It is not error for a trial court to give instructions requested by counsel on each side of the case, setting forth the law applicable to the theory of the case advanced by the party requesting the instruction, if such instructions correctly state the law and there is any evidence in the case which would justify the jury adopting the theory advanced by either the one or the other of the respective parties.

5. Under the provisions of sec. 4394 of the Rev. Codes, the verdict of a jury is required to be in writing, signed by the foreman "if all the jurors agree, and by those agreeing if three-fourths or more, but not all, agree," and must be read by the clerk to the jury and the inquiry made whether it is their verdict.

6. Under the provisions of sec. 4394 of the Rev. Codes, where a verdict is reached but is not agreed to by the entire jury it should be signed by each member of the jury agreeing to the same, and the court should in such cases see to it that the requirements of the statute are complied with; but where this requirement is not observed but the jury is polled in open court, and ten of them answer that the verdict returned and signed by the foreman is their verdict, and their names are entered on the minutes of the court and no objection or exception is taken to the form of the verdict, and no request is made to have it signed by the jurors agreeing to it, the error is not prejudicial, and the objection cannot be raised for the first time in the appellate court.

7. Where a man, seventy-six years of age with a life expectancy of about six years, as estimated by the mortality tables, is permanently injured and maimed by a railroad company through its negligence and is rendered a permanent sufferer for the remainder of his life, held, that the appellate court would not be justified in reducing or disturbing a judgment for $10,000 damages as being excessive.

APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

John H Padgham and Arthur O. Fording, for Appellant.

The rule of the majority of cases is that where the plaintiff is a trespasser or a mere licensee, the company is liable only for wantonness or wilful negligence. This court does not approve that rule; but as some of those cases may be referred to in argument by way of comparison, we cite the following: Gillis v. Pennsylvania R. Co., 59 Pa. 129, 98 Am. Dec. 317; Philadelphia & R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457; Redigan v. Boston & M. Co., 155 Mass. 44, 31 Am. St. 520, 28 N.E. 1133, 14 L. R. A. 276; Egan v. Montana C. Co., 24 Mont. 569, 63 P. 831; McConkey v. Oregon R. & N. R. Co., 35 Wash. 55, 76 P. 526; Burg v. Chicago R. I. & P. R. Co., 90 Iowa 106, 48 Am. St. 419, 57 N.W. 680; Norfolk & W. R. Co. v. Dunnaway, 93 Va. 29, 24 S.E. 698; Devoe v. New York etc. Ry. Co., 63 N.J.L. 276, 43 A. 899; Illinois C. R. R. Co. v. Godfrey, 71 Ill. 500, 22 Am. Rep. 112; Blanchard v. Lake Shore, 126 Ill. 416, 9 Am. St. 630, 18 N.E. 799; Cannon v. Cleveland etc. Ry. Co., 157 Ind. 682, 62 N.E. 8.

This court has adopted the more humane rule, that where persons may be expected to be in places of danger, whether licensees or trespassers, there the company should keep a reasonable lookout, according to the circumstances. This is the rule of the following cases: Anderson v. Great Northern R. Co., 15 Idaho 513, 99 P. 91; Townley v. Chicago etc. Ry. Co., 53 Wis. 626, 11 N.W. 55; Cassida v. Oregon R. & N. Co., 14 Ore. 551, 13 P. 438; Whalen v. Chicago etc. Ry. Co., 75 Wis. 654, 44 N.W. 849.

As tending to reconcile the two rules, we cite the following: Forno v. Pennsylvania R. Co., 234 Pa. 538, 542, 83 A. 406; Felton v. Aubrey, 74 F. 350, 20 C. C. A. 436; Brown's Admr. v. Louisville etc. R. Co., 97 Ky. 228, 30 S.W. 639; Anderson v. Chicago R. R. Co., 87 Wis. 195, 58 N.W. 79, 23 L. R. A. 203; Deans v. Wilmington etc. R. Co., 107 N.C. 686, 22 Am. St. 902, 12 S.E. 77.

In our case, the plaintiff was not invited, and the defendant had therefore undertaken no duty to him. He went upon the railroad property in the enjoyment of "an immunity, not a privilege." (Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478; Felton v. Aubrey, 74 F. 350, 20 C. C. A. 436; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91.)

From the evidence on behalf of plaintiff, without any reference to that of the defense, it appears that the plaintiff was guilty of contributory negligence; first, by voluntarily leaving the way of safety and walking unnecessarily in a place of danger; second, by walking there without due care for his own safety. (Forno v. Penna. R. R. Co., supra; Cassida v. Oregon R. & N. Co., supra; Birrell v. Great Northern, 61 Wash. 336, Ann. Cas. 1912B, 1239, 112 P. 362; Aurora Branch R. Co. v. Grimes, 13 Ill. 585; Gulf etc. Ry. Co. v. Wilkins (Tex. Civ. App.), 32 S.W. 351, 352; Spaven v. Lake Shore etc. Ry. Co., 130 Mich. 579, 587, 90 N.W. 325; Mobile & O. R. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; Davis v. Boston etc. R. Co., 70 N.H. 519, 49 A. 108; Neal v. Railroad, 126 N.C. 634, 36 S.E. 117, 118, 49 L. R. A. 684.)

F. J. Cowen and E. W. Whitcomb, for Respondent.

Railroad companies must exercise reasonable and ordinary care and precaution to avoid injury either to trespassers or licensees in places where the railroad company knows people are accustomed to gather and frequently go, such as street crossings, stations, etc. (Troy v. Cape Fear etc. R. Co., 99 N.C. 298, 6 Am. St. 521, 6 S.E. 77; Cassida v. Oregon R. & N. Co., supra; Hicks v. Pacific R. Co., 64 Mo. 430; St. Louis etc. R. Co. v. Crosnoe, 72 Tex. 79, 10 S.W. 342; Smith v. Pittsburgh & W. R. Co., 90 F. 783; International & G. N. R. Co. v. Jackson, 41 Tex. Civ. App. 51, 90 S.W. 918; Louisville & N. R. Co. v. Montgomery, 14 Ky. Law Rep. 477; Kansas P. R. Co. v. Ward, 4 Colo. 30; Holtzinges v. Penn. R. Co., 6 Pa. Dist. 430; Missouri K. & T. R. Co. v. Scarborough, 29 Tex. Civ. App. 194, 68 S.W. 196; Chicago & A. R. Co. v. O'Neil, 172 Ill. 527, 50 N.E. 216; Houston & T. Cent. Ry. Co. v. Boozer, 70 Tex. 530, 8 Am. St. 615, 8 S.W. 119; Connell v. Southern Ry. Co., 91 F. 466, 33 C. C. A. 633.)

The following cases relate to personal injuries caused by unnatural projections on moving cars, and to that extent, at least, are like this case: Sullivan v. Vicksburg etc. R. R. Co., 39 La. Ann. 800, 4 Am. St. 239, 2 So. 586; Baston v. Georgia R. Co., 60 Ga. 339; Chesapeake & O. R. Co. v. Davis, 119 Ky. 641, 60 S.W. 14.

It is actionable negligence on the part of any railroad company not to exercise reasonable care and precaution to avoid injuring any person whom it might know to be or reasonably expect to be upon its property, provided such party himself was free from contributory negligence. (Brown v. Boston & M. Ry. Co., 73 N.H. 568, 64 A. 194.)

"A reasonable lookout, varying according to the danger and surrounding circumstances, is the duty always devolving on those in charge of a railway train in motion, and railway companies are bound to exercise due care to avoid injury to others." (Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Shelby Admr. v. Cincinnati N. O. & T. P. Ry. Co., 85 Ky. 224, 3 S.W. 157.)

No lookout was had at the time of moving the train past the depot. (33 Cyc. 786 (B), and cases cited; Central R. etc. Co. v. Vaughn, 93 Ala. 209, 30 Am. St. 54, 9 So. 468; New York C. & St. L. R. Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91.)

The precautions to be adopted by parties in charge of trains in giving warning of movements of trains increases as the danger of accident and injury is increased. (Downing v. Morgan's La. etc. Ry. Co., 104 La. 508, 29 So. 207; 23 Am. & Eng. Ency., 2d ed., 745.)

"Negligence will not be imputed to one who...

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