Moore v. Utah Idaho Cent. R. Co.

• Citation: 52 Utah 373,174 P. 873
• Decision Date: 11 July 1918
• Docket Number: 3203
• Court: Supreme Court of Utah
• Parties: MOORE v. UTAH IDAHO CENT. R. CO

174 P. 873

52 Utah 373

MOORE v. UTAH IDAHO CENT. R. CO

No. 3203

Supreme Court of Utah

July 11, 1918

Appeal from the District Court of Weber County, Second District Hon. A. W. Agee, Judge.

Action by Ethel R. Moore, Administratrix of the estate of Charles W Moore, deceased, against the Utah Idaho Central Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Boyd DeVine, Eccles and Woolley for appellant.

C. C. Richards and Geo. Halverson for respondent.

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

OPINION

THURMAN, J.

Plaintiff, as the administratrix of Charles W. Moore, deceased, hereinafter called the deceased, brought this action to recover damages for the death of her intestate occurring in a railroad accident in May, 1916. At the date of the accident, the deceased was, and for a long time previous thereto had been, in the employment of defendant as conductor and motorman operating one of its cars between Ogden City and the town of Pleasant View in Weber County. The road upon which deceased operated the car was an extension of defendant's street car system in Ogden City. The car was operated by electricity, and the road upon which it ran passed through North Ogden and thence on to Pleasant View, a distance of about three miles. The grade of the road between North Ogden and Pleasant View ranged from zero to over three per cent. At and in the vicinity of the accident it was between two and three per cent., increasing in the direction of Pleasant View. The car driven by the deceased was a passenger car carrying passengers back and forth between Ogden City and Pleasant View, stopping at different stations between those points. Concerning the accident, the complaint alleges, in substance, that the duty of the deceased was to operate the car and collect the fares of passengers, and at about the hour of twelve o'clock noon of the day in question, while he was operating said car northward, and without any notice or warning that the defendant had another motorcar attached to a work train on the same track north of the car deceased was operating, and without notice that the said work train was rapidly approaching the car deceased was upon, the defendant carelessly and negligently caused its said motorcar and work train to violently and with great force and speed collide with and against the car deceased was operating, by means whereof he was crushed, bruised, and mangled, from which injuries he thereafter died. The defendant, answering, admits the employment, the collision, the injury, and death; but alleges that the collision occurred at about the hour of eleven fifty-five a. m., and denies that defendant was careless and negligent, or that the death of deceased was caused thereby. Further answering, defendant, in substance, alleges that deceased was guilty of contributory negligence, in that he was familiar with the line of railway and knew that the work train was upon the same track as the car he was operating and that the said work train was approaching his car, and, further, that contrary to instructions he then and there ran the car he was operating about five minutes ahead of the time provided in the schedule of the company by which he was directed to run said car, etc. It is then alleged, in substance, that notwithstanding his knowledge of these conditions he carelessly ran his car at a high rate of speed, causing the collision which resulted in his death. The case was tried to a jury. A verdict was rendered for plaintiff and judgment entered. The defendant appeals and assigns as error rulings of the court respecting the admission and exclusion of evidence, errors of the court in instructions to the jury, and refusal of instructions requested by defendant.

During the course of the trial, plaintiff offered in evidence the deposition of one Walter Williams, which, among other things contained certain interrogatories and answers taken by plaintiff to be used in rebuttal of anticipated testimony on the part of defendant. Plaintiff, having read to the jury the other portions of the deposition taken in chief, reserved the portions intended to be used in rebuttal. Defendant insisted that plaintiff should read all the examination in chief, and assigns as error the ruling of the court sustaining plaintiff's contention. The portions of the testimony reserved by plaintiff were of doubtful competency in any event at that stage of the case. They related to a conversation between the motorman of the work train and another person in presence of the witness shortly after the accident. One portion of the conversation was a statement that the deceased was "four minutes ahead of time." This statement was self-serving and incompetent unless it was a part of the res gestae. In fact, the questions leading up to the statement quoted were objected to by defendant on the grounds that they were incompetent and not in rebuttal of any testimony that had been introduced. In any event, if the testimony was competent for any purpose other than rebuttal, it was matter of defense, and defendant had the undoubted right to read it to the jury when putting in its defense. Of course, neither party should be permitted to read part only of its deposition in chief pertaining to a single subject and waive or reserve the remainder pertaining to the same subject, merely because the evidence is unsatisfactory. The whole matter, however, is largely in the discretion of the court. Subject to the exception above noted, we are of the opinion that each party has the right to introduce such portions of the deposition as he desires, and we believe these views are sustained by the great weight of authority. Respondent has cited a great number of authorities, in fact too numerous to mention in this opinion. The following will suffice: 9 A. & E. Ency. L. (2d Ed.) 365; Jones on Evidence, section 171 at page 884, and section 685 at page 169; 4 Ency. Ev. 527-532; 13 Cyc. 985; Crotty v. Railway Co., 169 F. 593, 95 C. C. A. 91; Morrison v. Wisconsin, etc., Co., 59 Wis. 162, 18 N.W. 13; H. Scherer & Co. v. Everest, 168 F. 822, 94 C. C. A. 346; Watson v. St. Paul, etc., Co., 76 Minn. 358, 79 N.W. 308; Bowen v. Durant, 25 N.D. 11, 140 N.W. 728; First Nat. Bank v. Minnesota & N.E. Co., 11 N.D. 280, 91 N.W. 436; Byers v. Orensstein, 42 Minn. 386, 44 N.W. 129; Wanamaker v. Megraw, 168 N.Y. 125, 61 N.E. 112; Forbes v. Snyder, 94 Ill. 374.

Appellant cites and relies on the following: 13 Cyc. 983; Comp. Laws Utah 1907, section 3459; Bank of Orland v. Finnell, 133 Cal. 475, 65 P. 976; Cook Brewing Co. v. Ball, 22 Ind.App. 656, 52 N.E. 1002; Kilbourne, Jenkins & Co. v. Jennings, 40 Iowa 473; Citizens' Bank v. Rhutasel, 67 Iowa 316, 25 N.W. 261; Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598; Linfield v. Old Colony R. C., 10 Cush. (Mass.) 562, 57 Am. Dec. 124; Hamilton Brown Shoe Co. v. Milliken, 62 Neb. 116, 86 N.W. 913; U.S. Trust Co. v. Lanahan, 50 N. J. Eq. 796, 27 A. 1032; Boney v. Boney, 161 N.C. 614, 77 S.E. 784; First Nat. Bank v. Minneapolis & N. Elevator Co., 11 N.D. 280, 91 N.W. 436; Gussner v. Hawks, 13 N.D. 453, 101 N.W. 898; Thomas v. Miller, 151 Pa. 482, 25 A. 127. The cases cited by appellant do not bear out its contention when applied to the facts in the instant case.

The court did not err in permitting plaintiff to reserve the testimony intended for rebuttal.

The witness Peterborg, superintendent of the work being done for which the work train was used, was sworn as a witness for defendant, and, it appearing that he was riding on the work train at the time of the collision, he was asked by defendant the following question:

"I will ask you to state whether or not in the ordinary running of your car, and with the time you and Mr. Kline had, as shown by your watches, state whether or not you had ample time to have made the switch at North Ogden before Moore could leave at twelve o'clock?"

The question was objected to by respondent and the objection sustained. The record discloses that the witness had already answered affirmatively a question substantially to the same effect. There was no error in the ruling of the court.

Another witness was permitted, over defendant's objection, on cross-examination, to testify as to the speed of the work train and its failure to give the usual signal at a point about a half mile above the place of the accident. This is assigned as error. It is very questionable whether or not the admission of the testimony was error in view of the examination in chief; but, assuming that it was, it was not prejudicial. This case, as will be seen hereinafter, must be decided entirely upon what occurred some considerable distance below that point and entirely independent of the speed of the train or the failure to signal at the point concerning which the witness was permitted to testify. The error, if any, was therefore harmless.

We now come to what is perhaps the most serious question presented by appellant's assignment of errors. The fifth instruction given to the jury by the court reads as follows:

"I further charge you, gentlemen of the jury that the collision in question was not the result of an unavoidable accident, or what is usually called a mere accident, but was the result of negligence upon the part of the person or persons operating and controlling one or both of the cars in question. Where two cars running in opposite directions on the same track meet in collision, the mere fact of the occurrence of the collision under such circumstances raises the presumption of negligence upon the part of some one or more of the persons in charge of the operation of one or both of such cars. But while the occurrence of the collision in this case raises the presumption that some person...