Morrissey v. Union Pac. R. Co.

• Decision Date: 28 September 1926
• Docket Number: 4361
• Court: Utah Supreme Court
• Parties: MORRISSEY v. UNION PACIFIC RAILROAD CO

249 P. 1064

68 Utah 323

MORRISSEY v. UNION PACIFIC RAILROAD CO

No. 4361

Supreme Court of Utah

September 28, 1926

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by Edward M. Morrissey, Jr., administrator of the estate of Samuel T. Bailey, deceased, against the Union Pacific Railroad Company. From a judgment of nonsuit, plaintiff appeals.

AFFIRMED.

Miller Matterson & Quinn, of Syracuse N.Y., and Stuart P. Dobbs, of Ogden, for appellant.

George H. Smith, John V. Lyle, Robert B. Porter, and Dana T. Smith all of Salt Lake City, and C. R. Hollingsworth, of Ogden, for respondent.

CHERRY J. THURMAN, FRICK, and STRAUP, JJ., GIDEON, C. J. concurring.

OPINION

CHERRY, J.

This action is to recover damages for the death of Samuel T. Bailey, and was brought by the plaintiff as administrator, etc. Deceased, at the time of his alleged injuries, was employed by the United States as a clerk in the railway mail service. It is alleged that on July 12, 1923, while engaged in his duty in a railway mail car, attached to and forming a part of a railway train moving between Green River, Wyo., and Ogden, Utah, operated by defendant, the deceased, in consequence of defendant's negligence, sustained an injury which later resulted in his death. The negligence alleged, in substance, is that the defendant operated the train at a high, dangerous, and reckless rate of speed, down grade, with defective equipment, over improper road and roadbed, and by the negligent and sudden application of the brakes, abruptly slackened the speed of the train, and thus produced an extraordinary, unusual, and violent lurch or jolt of the train, in consequence of which the deceased was thrown with great violence in and about the car in which he was riding, causing severe injuries to his head, from which a condition or disease developed, and from which he died about three months later. An issue of fact upon defendant's liability was made by the pleadings, and the case came on for trial before the court and a jury. At the close of the plaintiff's case, the court, on motion of defendant, ordered a nonsuit and dismissed the action. The plaintiff appeals.

The main question for decision is whether the plaintiff produced evidence sufficient to go to the jury upon (1) the defendant's negligence, and (2) the causal connection between the alleged injury and the death of deceased. The trial judge held against the plaintiff on both points.

The evidence was to the effect that on the 12th of July, 1923, the deceased and two other mail clerks, in the performance of their duties, were traveling in a railway mail car attached to and forming a part of passenger train No. 7, operated by the defendant company, which was on its way from Green River, Wyoming, to Ogden, Utah. The deceased and one clerk were standing up and the other was seated in a chair at a table. The train was moving rapidly down grade through a mountainous country, over a track with numerous curves, when there occurred a lurch or jolt of the car. The evidence of the occurrence and its immediate consequences consisted of the testimony of the two mail clerks who were present in the car with the deceased at the time. The clerk who was seated in the chair at the time of the incident stated:

"It was something of a checking of the train. It would seem to me like the air had been put on and caused this slight lurch. It moved my chair four or five inches forward. I pulled my chair back and proceeded with my work. My back was toward the other clerks, and I did not see what happened to them. I heard a sound like a man kicking something and Bailey said, 'It was quite a wallop.' Bailey asked me to feel his head, but I was rushed for time and did not look up. The lurch of the train caused a slight commotion. It was more than the usual movement of the train."

The other clerk stated:

"On account of the lurch of the train I lost my balance and fell. I didn't see Bailey fall, but I saw him pick himself up. I didn't notice what position he had fallen in. He asked me if I would glance at his head, if I could see where he was hit. I didn't stop to take any particular time--I couldn't see anything. I went over and started to tie up more letters, and he continued to do the same. The lurch was unusual, although I can't say it was any more unusual than some of the other unusual jerks I have experienced. An abrupt slackening occurs about every trip. Except for emergency stops or the air hose breaking, abrupt stops are not frequent. The train was abruptly slackened. I infer that it was due to the application of the air brakes. That occurs quite frequently. We do not take a trip on train No. 7 or No. 9 when it does not occur. Such an abrupt slackening occurs about every trip."

There was some evidence that Bailey was in good health prior to the time, but other evidence showed that when starting on his trip two days previous he complained of not feeling right and said he intended to lay off unless he felt better when he returned to Ogden. After the occurrence complained of, Bailey resumed his duties on the remainder of the trip of Ogden, and nothing more was said about it. Upon arrival at Ogden, the testimony was that he looked haggard, worn out, and fatigued. He did not return to work again. His wife testified that he returned home early in the afternoon of July 12, looking tired and without his usual vim or good spirits. He laid down and omitted his usual bath. He ate his usual dinner and retired early. Next morning he asked her to help him make out his trip report, which was unusual. He complained of his memory. In the afternoon she went with him to consult a doctor. No mention or complaint was made either to his wife or to the doctor of any accident or injury happening on the train. The doctor's examination, disclosed impaired vision, nasal obstruction, diseased tonsils, and nervous derangement, but no evidence of external injury. The patient complained to the doctor of loss of word memory, and said he had suffered a sunstroke on July 9th. Thereafter he was under constant observation and treatment, but gradually grew worse. His wife testified that he told her upon one occasion about two weeks after his first examination that he fell in the mail car on his trip in. This is the only evidence of any statement ever made by the deceased upon that subject. He died on November 1st. An autopsy or post mortem examination was at once performed which discovered a tumor called a gliosarcoma of the brain, which all the doctors agreed was the cause of death. The doctors, four in number, who had from time to time participated in the examination and treatment of the patient from the time of his alleged injury to the time of his death and who performed the autopsy, testified as witnesses for the plaintiff, and gave evidence to the general effect that deceased died from tumor of the brain, with nothing to indicate that the same was caused by injury, and that their examination discovered no evidence that the patient had sustained any external injury. Another doctor was produced as a witness for the plaintiff who testified that he had been present in court and heard all the evidence in the case, from which, he stated, he believed the death of the deceased was due to his injury. There was no direct or specific proof of defendant's negligence in the equipment or operation of the train.

The contention of the plaintiff is that, the deceased being a passenger of defendant, and the means of his transportation being exclusively within defendant's control, a prima facie case of liability is made out by the evidence of the accident and the resulting injury; that from the transaction itself a presumption of negligence arises under the maxim "res ipsa loquitur" (the thing itself speaks). The meaning of the doctrine of res ipsa loquitur is thus expressed by Erle, J., in Scott v. London Docks Co., 2 H. & C. 596:

"Where the thing is shown to be under the management of the defendant or his servants, and the...