Lawrence v. Denver & R.G.R. Co.

• Citation: 174 P. 817,52 Utah 414
• Decision Date: 16 July 1918
• Docket Number: 3167
• Parties: LAWRENCE v. DENVER & R. G. R. CO
• Court: Supreme Court of Utah

174 P. 817

52 Utah 414

LAWRENCE v. DENVER & R. G. R. CO

No. 3167

Supreme Court of Utah

July 16, 1918

Appeal from the District Court of Utah County, Fourth District; Hon A. B. Morgan, Judge.

Action by L. O. Lawrence against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED, with directions to grant new trial.

VanCott Riter & Farnsworth for appellant.

Parker & Robinson for respondent.

McCARTY J. FRICK, C. J., and CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

STATEMENT OF FACTS

This is an action to recover for personal injuries alleged to have been sustained and suffered by plaintiff through the alleged negligence of the defendant. Plaintiff in his complaint alleges, among other things, that defendant is a corporation, and that it is the owner of a line of railroad that passes through Springville City, Utah; that on or about March 28, 1916, at about five o'clock p. m., plaintiff was riding in an automobile that was in charge of one Orson Bird, which was being driven in a southerly direction through Main street, Springville City, towards defendant's railroad track, which crosses Main street, or, as it is sometimes called State road; that defendant carelessly and negligently ran its engine against the automobile so as to throw plaintiff against the steering wheel, or some other projection of the automobile, thereby straining, twisting, and dislocating the ligaments in his arm and shoulder, causing great mental and bodily suffering, and causing him to become permanently disabled; that the train was running at a high and dangerous rate of speed, between thirty and forty miles per hour, and that the employees carelessly failed to sound a bell or blow a whistle or give warning of its approach; that at the time of the accident there was a Springville City ordinance to the effect that all trains are prohibited from running through the inhabited portions of the city at a greater rate of speed than eight miles an hour, and that the bells upon locomotives in motion shall in all cases be rung continuously in the inhabited portions of the city.

The answer admits the corporate existence of the defendant and the ownership and operation of the railroad; admits that at the time alleged in the complaint plaintiff was riding in the automobile, and that it was in charge of Orson Bird; admits that the crossing is in the corporate limits of Springville City, but denies the remaining allegations of the complaint. As an affirmative defense defendant alleges in its answer that plaintiff was negligent, and that the driver of the automobile approached the crossing at a high and dangerous rate of speed, without taking the precaution of looking for trains, with his hearing impeded because the wind-shield of his automobile was up and the side curtains down; that plaintiff knew this, and that it was his duty to caution and admonish the driver to go slower and to be on the lookout for approaching trains; that he carelessly failed to admonish or caution the driver to slow down or to be on the lookout; that plaintiff negligently failed to look and listen attentively for trains; that, if he had kept a sharp and vigilant lookout, he would have seen the train in ample time to admonish the driver to stop, and as a result the automobile ran into the side of the train; that the locomotive whistle was sounded at least a quarter of a mile from the crossing and that the engine bell was rung; that an automatic bell, operated by electricity, at the crossing, which a current of electricity starts ringing when a train is a quarter of a mile from the crossing, was ringing at the time; that plaintiff carelessly failed to hear these signals, and carelessly failed to admonish the driver of the automobile to slow down as it approached the crossing.

The cause was tried to a jury, who returned a verdict in favor of plaintiff. To reverse the judgment entered on the verdict defendant presents this appeal.

Defendant moved the court for a directed verdict "upon the ground that the evidence shows that the plaintiff himself was guilty of negligence, which caused or contributed to the accident, in failing to look and listen attentively and carefully, and thereby ascertain the presence of the approaching train in time to call Mr. Bird's attention to it, and in failing to warn and caution Mr. Bird to drive slower, so that upon ascertaining the approaching train the automobile could have been stopped in time to avoid the collision." The refusal of the court to grant the motion is assigned as error.

McCARTY, J. (after stating the facts as above.)

The facts of this case, briefly stated, are as follows: On March 26, 1916, one Orson Bird, who was in the employ of Taylor Bros., of Provo, Utah called at the home of plaintiff in Spanish Fork, Utah and endeavored to sell plaintiff and his wife a piano. Respecting what was said and done on that occasion by and between the parties, Mrs. Lawrence, plaintiff's wife, testified in part as follows:

"He (Orson Bird) had come over to our place and wanted us to go over to Provo to sell us a piano. I told him I didn't want to buy a piano. * * * He said I would enjoy the ride and that it was no harm in riding over to look at a piano. * * * He did not particularly urge me to go; he suggested we ride over in the car. It was between 1 and 2, after lunch time. * * * When we got through with our mission at Provo and were ready to return, I believe the curtains were down. * * * On our way back we stopped at the Springville post office about twenty minutes."

Plaintiff testified, in part, as follows:

"We came to Provo to look at a piano which Bird was soliciting to sell, and after we examined the piano we came home."

Plaintiff and Bird were in the front seat. Mrs. Lawrence, Mrs. Groesbeck, plaintiff's daughter, and her little daughter, were in the back or rear seat of the automobile. Bird drove the automobile which belonged to his employers, Taylor Bros. The Orem Electric Interurban Railroad track, hereinafter referred to as the Orem track, is located for a considerable distance on and along the street in question, which is sometimes called "State street," as it is the main or principal thoroughfare north and south through Springville City. The Denver & Rio Grande Railroad track crosses this street near the southern part of the inhabited portion of the city. From the Springville post office the parties in the automobile proceeded along this street in a southerly direction parallel with and on the west side of the Orem track, towards Spanish Fork. On this point plaintiff testified as follows:

"As we approached the crossing at Springville we were on the right-hand side of the road--that is, on the west of the Orem track--until we got up to within 100 or 150 feet of the crossing. It was necessary to cross the Orem road to come to the crossing of the Rio Grande. He [Bird] crossed over, slowing up as he crossed. He went right on, and as we got within, to my best knowledge, from twenty-five to thirty-five feet from the track, I saw the train coming."

Bird, a witness for plaintiff, testified in part:

"I was driving on the west side of the Interurban tracks, and crossed over to the east about 150 or 200 feet from the Rio Grande tracks. * * * I slacked up crossing this track, and, knowing the other was right ahead of me, I drove slow from there on. * * * Just prior to approaching the D. & R. G. crossing I would judge I was driving from six to eight miles an hour. * * * I was about twenty or twenty-five feet from the Rio Grande crossing when I first saw the train. * * * It was about 125 to 135 feet east of the point where I was crossing. * * * As quick as I saw the train I took my foot from the gas feed * * * and applied my foot to the brakes and grabbed the emergency and stopped my car. The car ran about twelve to fifteen feet before stopping. * * * The step on the tender of the engine caught the end of the radiator and lifted the car and turned it right around with the engine facing north."

The evidence shows that there is an electric bell at the crossing, and that about a quarter of a mile to the east thereof there is an oscillator; that as a train approaches the oscillator from the east the vibration of the rail opens the oscillator and in doing so opens the circuit and starts the bell ringing; that on the occasion in question the bell was so arranged that when the circuit opened it would ring one minute and sixteen seconds. The evidence further shows that there is a whistling post approximately a quarter of a mile from the crossing. Notice or warning of trains approaching the crossing from the east is supposed to be given by sounding the whistle at the whistling post.

There is substantial evidence to support the finding of the jury that defendant was negligent in running its train at a high and excessive rate of speed, in violation of an ordinance of Springville City then in force.

The important and decisive question therefore is, was plaintiff, under the facts and circumstances disclosed by the evidence, considered in the light most favorable to him, guilty of negligence as a matter of law? In other words, did plaintiff do, or omit to do, anything on that occasion that, under the law, constituted negligence on his part?

It is vigorously contended on behalf of appellant that the evidence without conflict shows that on the occasion in question the usual and customary warning and signals, the blowing of the whistle, ringing of the engine bell, and the sounding of the automatic electric bell, were timely given, and that the only inference permissible from the evidence is that, if plaintiff had exercised ordinary care and vigilance in looking and listening as the automobile...