Lewis v. Rio Grande Western Ry. Co.

• Decision Date: 20 March 1912
• Docket Number: 2282
• Citation: 123 P. 97,40 Utah 483
• Court: Utah Supreme Court
• Parties: LEWIS et al. v. RIO GRANDE WESTERN RY. CO

123 P. 97

40 Utah 483

LEWIS et al. v. RIO GRANDE WESTERN RY. CO

No. 2282

Supreme Court of Utah

March 20, 1912

APPEAL from District Court, Fourth District; Hon. A. H. Christensen Judge.

Action by Susie Lewis and another, by her guardian ad litem, Susie Lewis, against Rio Grande Western Railway Company.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

Van Cott, Allison & Riter, and S. R. Thurman for appellants.

APPELLANT'S POINTS.

We believe it is both fundamental and elementary as a rule of evidence that one cannot presume a fact from a mere presumption. In other words, a presumption cannot be based upon a presumption. (Manning v. Insurance Co., 100 U.S. 693, 698; Welsh v. Erie & W. V. R. Co., 181 Pa 461, 37 A. 513; 16 Cyc. 1051.)

Proof of negligence without more, is not enough. In addition to this, the party upon whom rests the burden of proof must show by some competent evidence that the negligence proved was the proximate cause of the injury complained of, or, where there is more than one cause, that it at least was one of the causes. A prima facie case is not established until this is done. (Rogers v. Rio Grande Western Railway Co., 32 Utah 369, 90 P. 1075; Edd v. Union Pac. Coal Co., 25 Utah 293, 71 P. 215; Fritz v. Electric Light Co., 18 Utah 503, 56 P. 90; Morgan v. Oregon Short Line, 30 Utah 85, 83 P. 576; Stone v. Railroad, 32 Utah 205 89 P. 715; Edgar v. Railroad, 32 Utah 341, 90 P. 745; Cook v. Smelting Co., 34 Utah 198, 97 P. 28; Puckhaber et ux. v. Southern Pacific Co., 132 Cal. 363, 64 P. 480; Welsh v. Erie & W. V. R. Co., 181 Pa. 461, 37 A. 513; Railway Co. v. Henrice, 92 Pa. St. 434; Railroad Co. v. Evans, 53 Pa. St. 253; Railroad Co. v. Schertle, 97 Pa. St. 450; Stringert v. Ross, 179 Pa. 614, 36 A. 345; Searles v. Manhattan Railway Co., 101 N.Y. 661; Armstrong v. Town of Cosmopolis, 72 P. 1039, 32 Wash. 110; Hansen v. Seattle Lumber Co., 31 Wash. 608, 72 P. 457; Stratton v. C. H. Nichols Lumber Co., 39 Wash. 323, 81 P. 831; Reidhead v. Skagit County, 33 Wash. 174, 73 P. 1118.)

In the recognized definitions of the term "proximate cause" as promulgated by the courts and in standard treatises, there is one element universally present, and that is that in order to be the proximate cause of an injury, it must appear that the injury would not have happened without the act or omission relied upon as constituting negligence. This element is recognized in the following cases: (Anderson v. Bransford, 39 Utah 256, 116 P. 1023; Smith v. County Court, 33 W.Va. 713, 11 S.E. 1, 8 L. R. A. 82; Baltimore, etc., R. Co. v. Trainor, 33 Md. 542; Deming v. Merchants, etc. Co., 90 Tenn. 306, 17 S.W. 89, 13 L. R. A. 518; Mill Co. v. Standard Oil Co., 63 F. 400, 27 L. R. A. 583; Rider v. Syracuse, etc., R. Co., 171 N.Y. 139, 58 L. R. A. 125.) When a recovery is sought against a railroad company on the ground that it was running its train at the time of the injury in excess of a statutory rate of speed it must be made to appear before a recovery can be had that such excessive speed was the cause of the injury. (Story v. Railroad Co., 79 Iowa 402, 44 N.W. 690; Haas v. Railroad Co., 41 Wis. 44; Railroad Co. v. Kennedy, 3 Kan. App. 693, 43 P. 802; Penn. Co. v. Hensil, 70 Ind. 569, 36 Am. Rep. 188.) The theory contended for and upon which a recovery is sought must be established by a preponderance of the evidence, even though circumstantial, to the exclusion of all other inconsistent theories. (Neal v. Chicago, etc., Ry. Co., 129 Ia. 5, 105 N.W. 197; Manning v. Railroad Co., 105 Mich. 260, 63 N.W. 312;Chandler v. Railroad Co., 159 Mass. 589, 35 N.E. 89; Donald v. Railroad Co., 93 Iowa 284, 61 N.W. 971; State v. Railroad Co., 58 Md. 221; Lee v. Reliance, etc., Co., 21 R. I. 549, 45 A. 554; Asbach v. Ry. Co., 74 Iowa 248, 37 N.W. 182; Reynolds v. Burgess, etc. Co., 73 N.H. 126, 59 A. 615; Wheelan v. Ry. Co., 85 Ia. 167, 52 N.W. 119, 16 Cyc. 1051.)

There being no evidence tending to show that the death of the deceased was proximately caused by the negligence relied upon, it was the clear duty of the court to determine as matter of law that the defendant had been guilty of no negligence which was the proximate cause of the decedent's death. (Pratt v. Utah Light & Ry. Co., 38 Utah 500, 113 P. 1032; Edgar v. R. G. W. Ry. Co., 32 Utah 330, 90 P. 745; Anderson v. Bransford, 39 Utah 256, 116 P. 1023; Railway Co. v. Trich, 2 Am. St. Rep. 672; Stone v. Boston, etc., R. Co., 171 Mass. 536, 51 N.E. 1, 41 L. R. A. 794; Read v. Nichols, 118 N.Y. 224; Cuff v. R. R. Co., 35 N. J. L. 17; Behling v. Pipe Lines, 160 Pa. 359, 28 A. 777, 40 Am. St. Rep. 724; Mill Co. v. Standard Oil Co., 63 F. 400.)

Where it appears that a pedestrian is struck by a train on a crossing from which the train which struck him could be seen for a distance of over three hundred feet and heard for a distance much greater than that and where no exceptional conditions exist interfering with the ability to see and hear, it ought to be conclusively presumed as a matter of law that the person struck was guilty of contributory negligence. (Wilkinson v. Railroad, 35 Utah 110, 99 P. 466; Kirtley v. Railway Co., 65 F. 390; Marland v. Railway Co., 123 Pa. 487, 16 A. 623; Moore v. Railroad Co., 108 Pa. St. 349; Railroad v. Bell, 122 Pa. 58, 15 A. 561; Lake Erie and W. R. Co. v. Stick, 143 Ind. 449, 41 N.E. 365; Tomlinson v. C. M. & St. P. Ry. Co., 134 F. 233; Rollins v. Ry. Co., 139 F. 639; Penn. R. Co. v. Mooney, 126 Pa. 244, 17 A. 590; Sullivan v. Ry. Co., 175 Pa. 361, 34 A. 798; State v. Maine Central R. Co., 76 Me. 366, 49 Am. Rep. 622; Railroad v. Beale, 73 Pa. St. 504; Wilcox v. Railroad, 39 N.Y. 358, 100 Am. Dec. 440.)

Plaintiff in the court below insisted that the crossing in question was particularly dangerous on account of the curve in the road and the trees and undergrowth on the east side of the right of way. The witnesses whose testimony we have quoted allowed for that in their testimony and the distances given to which a train could be seen took these obstructions into consideration. But assuming the crossing was more dangerous than it would have been without these obstructions the duty of deceased to exercise a higher degree of care became all the more imperative. (Railway Co. v. Chrisman, 19 Colo. 30; Kwiothowski v. Ry. Co., 70 Mich. 551, 38 N.W. 463; Gardner v. R. R. Co., 97 Mich. 240, 56 N.W. 603; Chase v. R. R. Co., 78 Me. 346, 5 A. 771; Hayden v. Ry. Co., 124 Mo. 566, 28 S.W. 74; Holden v. Ry. Co., 169 Pa. St. 1, 32 A. 103.)

Evans & Evans, and Dey & Hoppaugh for respondents.

McCARTY, J. STRAUP, J., FRICK, C. J., concurring.

OPINION

McCARTY, J.

Plaintiffs, the surviving widow and the daughter of John S. Lewis, deceased, brought this action to recover damages for the death of said Lewis, alleged to have been caused by the negligence of the defendant in operating a locomotive and train of cars within the corporate limits of the City of Lehi.

It is alleged in the complaint that at all times therein mentioned the tracks of the defendant company ran through said City of Lehi, and upon, along, over, and across various streets thereof; that on July 3, 1905, at about the hour of midnight, Lewis, the deceased, was traveling over and upon one of the streets of said city on which was said railroad, and, while crossing the railroad track, was struck by a locomotive to which was attached a train of cars owned and operated by defendant, and was knocked down and under the wheels of said locomotive and instantly killed; that the locomotive and train of cars, at the time of the accident, were running at a great and dangerous rate of speed, and in excess of that permitted by the ordinances of Lehi City; that the defendant negligently failed to sound the whistle or ring the bell, or to give any warning of the approaching train, and failed to have any flagman or other employee for that purpose; and that by reason of these negligent acts and omissions the said Lewis was struck and killed, as aforesaid. The answer of the defendant denies the negligence alleged, and alleges want of knowledge or information sufficient upon which to from a belief as to how the deceased came to be upon the railroad track, or in what manner he was struck by the train. The answer affirmatively alleges that the deceased was guilty of contributory negligence. A trial was had to a jury, which resulted in a verdict in favor of plaintiffs for the sum of $ 7500. From the judgment rendered on the verdict, defendant appeals.

The facts in the case, briefly stated, are as follows:

Appellant's depot in the Town of Lehi is situated on or near the northwest corner of the block fronting on First North and Third West Streets. From the depot, the railroad track runs due south along the center of Fourth West Street until it reaches Third South, from which point it runs on a curve to the east side of Fourth West and diagonally through the west half of the adjacent block, and crosses Fourth South Street at a point near the center of the block. There are cattle guards and a fence across appellant's right of way where the track enters the block mentioned on the north, and also where it leaves the block at Fourth South Street; and there is a fence, from four to five feet high, and a row of black willow and popular shade trees, from twenty to thirty feet high, on the east side of the right of way, where the track runs on a curve through the block. There are telephone or telegraph poles the usual distance apart, and a somewhat dense grove of willows between the fence and the east side of the right of way and the railroad track. The willows, which are from five to fifteen feet high, extend northwesterly and southeasterly along the right of way the entire length of the block. The space between the rails,...