Morgan v. Oregon Short Line Railroad Co.

• Decision Date: 14 December 1903
• Docket Number: 1494
• Citation: 27 Utah 92,74 P. 523
• Court: Utah Supreme Court
• Parties: WILLIAM MORGAN, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

74 P. 523

27 Utah 92

WILLIAM MORGAN, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1494

Supreme Court of Utah

December 14, 1903

Appeal from the First District Court, Box Elder County.--Hon. C. H Hart, Judge.

Action to recover damages for the death of plaintiff's son alleged to have been caused by the negligence of defendant. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

P. L Williams, Esq., and Geo. H. Smith, Esq., for appellant.

Under the facts, the plaintiff's son was of course a trespasser, to whom the railroad company owed no positive duty and would only be liable for a wanton, willful or intentional injury. Ill. Cent. R. R. v. King, 179 Ill. 91, 70 Am. St. 93; Richmond & D. R. R. Co. v Burnsed, 70 Miss. 437, 35 Am. St. 656; Bess v. Chesapeake & Ohio R. R., 35 W. V. 492, 29 Am. St. 820; Planz v. Boston & Me. R. R., 157 Mass. 377; P. C. C. & St. L. v. Redding, 140 Ind. 101; Ry. Co. v. Meacham, 91 Tenn. 428.

J. D. Call, Esq., and C. C. Richards, Esq., for respondent.

BARTCH J., delivered the opinion of the court. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.,

STATEMENT OF FACTS.

The plaintiff brought this action to recover damages for the death of his son, which he alleges in his complaint to have been caused by the "reckless, wanton negligent unlawful, willful, and malicious conduct of the defendant and its servants" in the operation of the railroad company's train. From the evidence it appears that in the afternoon of the fifth of January, 1901, six young men by the name of Hunsacker, 18 to 22 years of age, residents of Honeyville, a town on the line of the defendant's railroad, boarded a freight train and stole a ride to Brigham City for the purpose of attending an entertainment that night at the theater. After the entertainment they went to the railway station at Brigham City to get a train to return home. There they met plaintiff's son, John Morgan, nearly 19 years of age, and another young man by the name of Olsen, Morgan's companion. These two boys had been drinking during the evening, and Olsen was intoxicated, but as to whether or not Morgan was much under the influence of liquor the evidence is conflicting; that of the plaintiff being to the effect that he was not, that of the defense that he was. These parties, after arriving at the station, all remained there awaiting the arrival of the passenger train, due at 1:05 that night, and in the meantime three of the Hunsacker boys, to insure the stopping of that train at Honeyville, where it was not scheduled to stop except when passengers were on board to alight, purchased tickets, but upon concluding that the same purpose could be accomplished with one ticket, two of the boys returned their tickets to the agent, and received a return of the money paid for them. When the train arrived, the boy who had the ticket went into a car, the rest got on the train wherever they could. The Morgan, Olsen, and three Hunsacker boys climbed on top of the coaches. The two that were not on top of the cars were discovered soon after the train had started, one of them having attempted to ride on the pilot of the engine, and, upon the speed of the train being slackened, they got off. Before reaching Honeyville the train was stopped several times to put these parties off, and was delayed thereby 25 minutes. The plaintiff's testimony tends to show there were but three stops, while according to that of defendant there were four made. The five trespassers on top of the train rode there until the second or third stop was made, when some one, they having been discovered, required them to get down. As they got down, they immediately ran around the rear end to the west side of the train, and got on there, and, as the Hunsacker boys passed along on the west side, they, according to their testimony, saw Morgan helping Olsen upon the steps under the vestibule doors at the front end of the rear car, and they saw Morgan climb up onto the steps at the rear end of the second car. After the train had started and was running, according to the testimony of the Hunsacker boys, about as fast as a man could run to keep up with it, a trainman with a lantern ran along the side of the train from the rear end to Olsen, and taking him by the leg, pulled him off the train. He then went to Morgan and pulled him off likewise. Both fell to the ground on the west side of the track as they were pulled off, and Olsen rolled out across some ice. The trainman then got on board the train at the rear end of the last car as it passed by, and it appears, no one saw what became of Olsen and Morgan, or what they did after they were pulled off the train. After proceeding some distance, the train was again stopped, and the remaining four of the trespassers were put off. Respecting this affair the plaintiff's witness Israel Hunsacker, one of the trespassers, in the course of his testimony, made statements as follows: "I should judge it was 1 1/2 or 2 miles out from Brigham when the first stop was made. I should think, when the second stop was made, that would be six or seven miles from Brigham. When the train stopped at this time one of the trainmen came up on top of the train. He walked up to where the boys were, and they got up and went to the hind end of the train, and got off. Then he came up to where we were, and we got off. When we got off the hind end of the train we ran around on the west side, and as Parley and I went around John Morgan was helping the Olsen boy up under the vestibule on the front end of the rear car. By the vestibule I mean the doors which are built over the steps. We ran on up to the next car, and got on there, and, looking backwards, Morgan was just crawling under the door on the rear end of the second car, which would be one car length from us. It was a moonlight night. After that, while the train was going, I saw a man carrying a lantern come from the rear end of the train up alongside of it, and run up to where the Olsen boy was, and caught him by the legs and yanked him out. Then he ran up and caught the Morgan boy by the legs, and pulled him out. The train was in motion by that time, but I don't know how fast. It was going about as fast as a man could run. The man with the lantern caught on to the rear end of the train when it came by. I saw Morgan fall to the ground, and did not see any more of him. This was about half-past one or two o'clock in the morning. When the Olsen boy was pulled out from the train he rolled out across the ice nearly to the fence on the west side of the track. The Morgan boy fell down by the side of the track. I didn't see him get up. I didn't see either the Olsen or the Morgan boy any more. I didn't see John Morgan get on the train at either place after he was taken off. I saw the trainman board the train. He took the rear end of the train." On cross-examination the same witness, among others, made the following statements: "Some time after we had been at the depot, we went inside. The crowd of us were outside most of the time, walking about and chatting, laughing and joking. I bought a ticket, and two of the other Hunsacker boys did also. They were Okham and Newman. Then, when the train came in, two of the boys went back and got the agent to refund the money and take the tickets. I was one of them and Newman was the other. That left Okham with the ticket. We had purchased the tickets in order to make sure that the train would stop at Honeyville, for that was not a regular stop for that train, and it would not stop there unless there were passengers to get off. So we planned to have one ticket on the train, so that it would be sure and stop that the others might get off. After we found that we had purchased three tickets among us, we took two of them back, because one would answer the purpose as well as three. The gentleman took our tickets back and returned our money. Okham, who had the ticket, went into the train. He was the only one of us that did go into the cars. The rest of us commenced to board the train wherever we could. Besides the six Hunsacker boys, there was John Morgan and this Olsen boy. I knew at the time that we went to the station and entered upon this enterprise that we were stealing a ride, and knew that we had no business there upon the train. When we were taken down from the top, we went around on the west side and got on again. I saw the Olsen and the Morgan boy as we ran up by the side of the train to get on a car length ahead of them. When we got a car length past them, we stood on the bottom step and hung onto the platform. We were not in the vestibule at all, but between the two vestibules. Just as we got in our position, a man came from the rear end of the train, and he was the man that took hold of these boys and pulled them off. The train was not going so fast at the time these boys were taken off but what this man, whoever he was, could keep up easily with it and take hold of these boys. When these boys were put off, we did not pay any more attention to them or to their actions. We watched the man with the lantern, and saw him get on the...