Miller v. Southern Pac. Co

• Citation: 21 P.2d 865,82 Utah 46
• Decision Date: 03 May 1933
• Docket Number: 5033
• Court: Supreme Court of Utah
• Parties: MILLER v. SOUTHERN PAC. CO

21 P.2d 865

82 Utah 46

MILLER v. SOUTHERN PAC. CO

No. 5033

Supreme Court of Utah

May 3, 1933

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by George Miller against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Bagley Judd & Ray, of Salt Lake City, for appellant.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.

MOFFAT Justice. FOLLAND and EPHRAIM HANSON, JJ., STRAUP, Chief Justice, concurring. ELIAS HANSEN, Justice, dissenting.

OPINION

MOFFAT, Justice.

Plaintiff was injured while employed as a fireman by the defendant company. This action was brought to recover for his injuries. Plaintiff had judgment. Defendant appeals. The assignments of error are numerous (one hundred and two in number). The assignments may be grouped into five classes: (1) Those which relate to the admission and rejection of evidence (eight in number); (2) those which relate to the refusal of the trial court to instruct the jury as requested by the defendant (fourteen in number); (3) those which relate to the instructions given to the jury by the court (seventy-five in number); (4) those relating to re-reading or modifying instructions (four in number); and (5) the refusal of the court below to grant a new trial.

The assignments of error relating to the admission and rejection of evidence, those relating to re-reading or modifying instructions, except as covered by assignments relating to errors, in given and refused instructions, and relating to the refusal to grant a motion for a new trial, are not argued, and hence are deemed waived, and will not be discussed in this opinion.

There is (substantial) agreement as to the existence of the following facts:

At the time of the alleged accident and injuries complained of, the defendant maintained a double-track railroad extending from San Francisco to and beyond Bay Shore, Cal. Bay Shore is about five miles south (in railroad parlance east) of San Francisco. A train in going over the tracks from San Francisco to Bay Shore passes through four tunnels which were numbered in order respectively 1, 2, 3, and 4. Tunnel No. 4 is near to and north of Bay Shore. The southerly end of tunnel No. 4 opens into the Bay Shore yards, which yards are extensive. Freight coming into San Francisco by railroad is collected in the Bay Shore yards. It is there classified and taken over the main line by switch engines to San Francisco.

Three hundred three feet north from the northerly portal of tunnel No. 4 is signal or semaphore No. 44. Tunnel No. 4 is 3,547 feet in length, 30 feet wide, and from 22.3 to 23.3 feet in height. Four hundred fifteen feet southerly from the south portal of tunnel No. 4 and in the Bay Shore yards, signal or semaphore No. 24 is located. Two hundred fifteen feet southerly from signal No. 24 is a derail switch so arranged that when it is open an engine or train moving over the right-hand or south-bound track would be derailed. About 540 feet southerly from the derail switch is a dwarf signal, and a short distance further southerly from the dwarf signal on the main line is the crossover switch, and track No. 51 connecting with the crossover track. By means of the switch and crossover track trains cross over the southbound track of the main line to the north-bound track of the main line. It is through this switch and crossover track that trains are moved from the Bay Shore yard to the northbound track and thence over that track to San Francisco. About 700 feet southerly from the south portal of tunnel No. 4 in the Bay Shore yard the defendant maintained an interlocking tower from which signals and switches may be controlled in directing the movement of trains and cars over the track and switches within the Bay Shore yards as well as the trains that pass over the main line in the immediate vicinity of the Bay Shore yards. There is a dwarf signal and derail switch located on track 51 and controlled from the signal tower, for the purpose of directing and controlling the movement of trains, engines, or cars approaching the main line and crossover track from track 51.

On July 4, 1928, at 8 o'clock a. m. defendant's passenger train No. 78 left San Francisco bound for Los Angeles. One John Weir was the engineer and the plaintiff herein was the fireman on engine No. 4355 pulling passenger train No. 78. It left San Francisco and was running on time. It was due at Bay Shore at 8:09 a. m. As the train proceeded through tunnel No. 4 and when it had arrived at a point about 250 feet north of the southerly portal, the engineer saw that signal or semaphore No. 24 indicated stop. The engineer immediately applied the emergency brakes, but was unable to bring the train to a stop before it reached the derail switch located 630 feet south from the southerly portal of tunnel No. 4. As a result the engine was derailed and after passing over the ties for some distance turned over on its side. When the engine turned over some of the steam pipes were broken. The steam emitted from the broken pipes burned the plaintiff about the face, neck, arms, body, and legs. The plaintiff was at once taken to a hospital where he was treated for his injuries. He remained at the hospital until November 14, 1928.

The evidence shows without conflict that passenger train No. 78 carried express destined for points outside of the state of California. On this appeal the defendant concedes that the plaintiff at the time he was injured was engaged in interstate commerce.

Immediately prior to the time of the accident a switch engine drawing six cars loaded with apricots approached the main line along switch 51. As this drag, as it is called, approached the main line, the dwarf signal showed red which means stop. The engineer on the switch engine whistled to the towerman for the main line. The whistle is a signal to the towerman. The whistle was given two minutes before No. 78 was due. The towerman gave the dwarf signal green which meant the drag could take the crossover to the main north-bound track. The drag was on the crossover when No. 78 came. Signal No. 24 was at stop and the derail on the south-bound main track was open to protect the movement of the apricot train or drag as it was passing over the south-bound main track.

It is established, in fact no one contends otherwise than, signal No. 24 was at stop when No. 78 approached the south portal of the tunnel. The signal at semaphore No. 24 was seen by both the fireman and engineer when the engineer was about 250 feet northerly from the south portal of Tunnel No. 4.

The principal issues raised by the pleadings and to which much of the evidence is directed relate to the position of the signal arms of semaphore No. 44 at the time of and immediately preceding the accident. Both parties to this controversy agree that signal No. 24 indicated stop, that the derail was open, and that the crossover track and switch were being used by the apricot drag at the time train No. 78 arrived, and that with that situation prevailing signal No. 44 should have indicated to those in charge of passenger train No. 78 at the time No. 78 arrived at signal No. 44, to proceed with caution and be prepared to stop at signal No. 24.

Plaintiff charges in his complaint that at the time in question defendant was negligent, in that it caused signal No. 44 to show that the engine upon which he was riding could proceed safely into and through tunnel No. 4 when such signal should have indicated that the engine must proceed with caution and be prepared to stop at signal No. 24. Plaintiff also alleges in his complaint that (if signal No. 44 was at caution) defendant was negligent, in that its engineer who was in control of the engine upon which plaintiff was riding negligently failed to observe that signal No. 44 indicated that he should proceed with caution into and through tunnel No. 4. And, also, that the engineer failed to slacken the speed of the train so that it could be stopped at or near signal No. 24.

In its answer defendant denied negligence on its part. It also affirmatively alleged that at the time in question signal No. 44 indicated that the train upon which plaintiff was riding should proceed with caution into and through tunnel No. 4 and be prepared to stop at signal No. 24, and that signal No. 24 indicated stop; that the accident which caused plaintiff's injuries was due to his own negligence in failing to obey the rules of the defendant company, in that he failed to keep a constant and vigilant lookout, and failed to observe the position of all signals including those at each end of tunnel No. 4, and likewise failed to communicate to the engineer, by their name, the positions and indications of such signals.

In support of the alleged negligence of the defendant, plaintiff and his witnesses testified in substance as follows:

The deposition of John Weir was read and received in evidence. Mr. Weir testified that he had been in the employ of the defendant company for about 39 years, during which time he had been a locomotive engineer for 30 years; that he was the engineer on train No. 78 at the time of the accident in which plaintiff was injured; that the tracks between tunnel No. 3 and tunnel No. 4 were not straight, but curved so that the engineer on a train approaching tunnel No. 4 from the north was on the inside of the curve; that there was an overhead viaduct between tunnels Nos. 3 and 4; that one on the engineer's side could first see the signal just north of tunnel No. 4 as he approached it from the north when he was about 1,500 feet away from it; that as he approached signal No. 44 at the time in question that signal showed clear; that when he was probably 250 feet from...