Leak v. RIO Grande W. Ry. Co.

• Decision Date: 30 August 1893
• Citation: 33 P. 1045,9 Utah 246
• Court: Utah Supreme Court
• Parties: FRANK LEAK, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

33 P. 1045

9 Utah 246

FRANK LEAK, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

August 30, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane judge. The opinion states the facts.

Affirmed.

Messrs Bennett, Marshall and Bradley, for the appellant.

Messrs. Powers and Hiles, for the respondent.

MINER, J. BARTCH, J., and SMITH, J., concurred.

OPINION

MINER, J.:

The plaintiff in this case was a teamster hauling ore from the mines at Bingham canyon, and placing it in cars provided for it by the defendant at Bingham, Utah. The railroad track and yard at Bingham extend southwesterly down the canyon. The track lying east of the depot is called the "main track," and the "ore track" is about 22 feet east of it. The "switch track" runs east of the ore track, and joins with it. The widest point between the cars on these tracks is eight feet and nine inches. At the place of the accident, the cars would be six feet and four inches apart. Between the ore and switch tracks there is a well traveled road, as also between the main and ore tracks. Plank crossings were placed by the defendant near both ends of the switch track, where it joins the ore track, for the use of teamsters in crossing the track. A track called the "Winnamuck track" runs northeast from the switch track, built on a slight grade, and the "tramway track" lies further east, connecting with the Winnamuck track; and still further west there is a six foot ditch without bridges. Along these tracks were houses and trees, which partly obscured the locality where the tramway and Winnamuck tracks join from plaintiff's view as he drove over the crossing. Appellant's cars were placed on the ore track for the purpose of being loaded with ore by teamsters who came down the narrow canyon in the wagon road between the main and ore tracks. After unloading, these teamsters would usually cross the ore track at the northerly crossing, and drive back up the canyon between the ore and switch tracks. This was the only way provided for going to and unloading ore into the cars.

On the day of the accident complained of, the ore track was filled with cars from crossing to crossing, and there was a long string of cars on the main track, extending northerly beyond the depot; so that, after unloading ore, the only available way to drive out of the yard was to cross the ore track at the northerly crossing, and pass back up the canyon in a southerly direction, between the ore and switch tracks. It was the custom of the defendant to push empty cars up the Winnamuck tracks, with an engine, past the house track, until it reached the junction with the tramway track, and then detach its engine from the cars, and run it along the tramway track, and allow its cars to pass down the Winnamuck track onto the switch track of their own gravity, and thus cross the ore and switch tracks. On the day of the accident complained of, plaintiff unloaded his are into defendant's cars, standing on the ore track, and then drove across the northerly crossing of the ore track, and along the usually traveled road between the ore and the switch tracks up the canyon; and, after driving about 180 feet, five box and coal cars, which had been detached from the locomotive engine in the manner before described, were turned loose by the defendant's servants, and, by force of gravity, ran down the grade of the Winnamuck track, onto the switch track, striking the rear end of respondent's wagon, and crushing him and his horses and wagon between such cars and the cars standing on the ore track, 6 1/2 feet away, from which he suffered injuries, making it necessary to amputate his leg above the knee. It appears from the plaintiff's testimony that he looked and listened for cars before passing up the track, but saw none on the track; that there was no warning or signal of any kind given to warn him of the approaching cars, and no watchman was kept at the place in question. The cars came down the grade at the rate of 20 miles an hour. A brakeman standing on the top of the front car testifies that he set the brakes before reaching the wagon. Other testimony tends to show that no attempt was made to set the brakes until the wagon was reached. The plaintiff was a healthy man, of 28 years of age, and was earning three dollars per day. It also appears that the plaintiff had been engaged in hauling ore at this point for 18 months, and was well acquainted with the different tracks in the yard, and with the method used in switching cars. Plaintiff recovered a judgment in the court below for $ 13,370. Defendant's motion for new trial was overruled, on condition that $ 3,000 be remitted from the judgment, which was done. Thereupon the defendant appealed from the judgment, and from the order denying defendant's motion for a new trial. The appellant seeks a reversal of the judgment, assigning many errors therefor. We shall only consider such assignments of error as are discussed in appellant's brief.

Error is assigned upon the refusal of the trial court to instruct the jury that it was the plaintiff's duty, before crossing defendant's line of railway, or before approaching so closely thereto that he might be injured by passing cars, to both look and listen for the cars; and if he failed to do so, and if, by so doing, the collision could have been averted, then the plaintiff was guilty of contributory negligence, and could not recover. The court instructed the jury upon this subject as follows: "The court further charges you that, though the defendant may have been guilty of negligence that contributed to the injury, yet, if the plaintiff was also guilty of negligence that contributed to the injury, he cannot recover; and, in determining whether he acted with due care, you may take into consideration the circumstances under which he was acting. You have a right to take into consideration he was traveling upon the traveled way usually traveled by persons hauling ore to this train. You have a right to take into consideration the observation that he made, so far as the evidence shows it; whether he looked out as he should have done for the danger of coming cars, or whether he listened. You should take into consideration all of the circumstances, all that he did, and all that he failed to do, in order to determine whether he acted with due care, or was guilty of negligence. (5) The court further charges you that if the plaintiff attempted to cross defendant's line of railway, or to approach so near it as that injury might have resulted to him, where he should, by the exercise of ordinary care, see that it was especially dangerous, it was plaintiff's duty to use an amount of care proportioned to the danger. Of course, when persons are acting under dangerous circumstances and conditions, it is their duty to act with respect to the danger that surrounds them, and to use a greater degree of care where there is much danger than where there is but little."

The testimony shows that the respondent did look and listen for cars as he...