Newton v. Oregon Short Line Railroad Co.

• Decision Date: 09 July 1913
• Docket Number: 2459
• Court: Utah Supreme Court
• Parties: NEWTON v. OREGON SHORT LINE RAILROAD CO

134 P. 567

43 Utah 219

NEWTON v. OREGON SHORT LINE RAILROAD CO

No. 2459

Supreme Court of Utah

July 9, 1913

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Action by Frank W. Newton, against Oregon Short Line Railroad Company.

Judgment for defendant. Plaintiff appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

Powers & Marioneaux and B. N. C. Stott for appellant.

P. L Williams, George H. Smith and J. V. Lyle for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action brought by appellant, as father, to recover damages for the death of his son, a minor, which it is alleged was caused through the negligence of the respondent in operating its engine and cars at a street crossing in Salt Lake City. The acts and omissions constituting the negligence alleged in the complaint and relied on at the trial, in substance, are: That respondent carelessly and negligently ran and operated an engine, to which were attached two freight cars, in a certain street in Salt Lake City at a high and dangerous rate of speed, and at a speed in excess of that allowed by the ordinances of said city; that respondent carelessly and negligently failed and omitted to keep a lookout for persons about to cross or who might be on or near its tracks at the intersection of Eighth West and South Temple Streets where the accident occurred; that it negligently failed to keep said engine and cars under control so that they might be stopped in time to avoid injury to persons who were crossing, or were about to cross, or who were using the intersection of the streets aforesaid; that it negligently failed to give warning as said engine and cars were approaching the intersection aforesaid; and that by reason of said acts and omissions said engine and cars were run at, on, and over said minor son, causing his death. Respondent denied all the acts of negligence and pleaded contributory negligence on the part of the deceased.

The salient facts developed at the trial are, substantially, as follows: On the 6th day of August, 1910, at about five o'clock p. m., or a little later, Horatio W. Newton, the deceased, of the age of nineteen years and eleven months, was engaged in delivering a daily evening newspaper in the western part and a somewhat thickly populated portion of Salt Lake City; that in discharging his duties at the time in question he was passing north on Eighth West Street at or near the intersection of that street with South Temple Street, Eighth West Street running north and south, and South Temple Street running east and west; that there were two tracks located on South Temple Street, near the center thereof, running east and west, the outside rails of which were thirteen or fourteen feet apart; that the north track was used by the Saltair trains, and the south track was used jointly by the San Pedro, Los Angeles & Salt Lake Railroad Company and the respondent; that at the time stated a Saltair passenger train composed of some twelve or thirteen passenger cars loaded with passengers who were going to Saltair, a bathing resort in Great Salt Lake, was passing westward on the north track. while at the same time an engine with two freight cars attached was also being run westward on the south track, the latter being perhaps a little in the rear of the Saltair train, or running parallel with that train near the rear end thereof. The engine was being run backwards.

A young woman who lived on the east side of Eighth West Street, and south of the street intersection aforesaid heard the noise of the Saltair train as it was coming west, and she at once went to the north window of the house in which she was staying for the purpose, as she says, of seeing the passengers on that train. When she arrived at the window she looked in a northerly or northwesterly direction and observed the deceased standing near the east sidewalk on Eighth West Street, and at or near the north rail of the south track on which the engine was being run. He was then facing in a northerly or northwesterly direction and was standing astride of his bicycle apparently waiting, as she says, for the Saltair train to pass by him on the north track. She testified that the deceased stood in that position for from three to five minutes before the train passed him, but she frankly conceded that her judgment of time was unreliable. When she went to the window as aforesaid the Saltair train had not yet come within her field of vision, but she says she was attracted to the window by its noise, and hence it must have appeared in an instant or two, or at least in a very short space of time after she arrived at the window. While the deceased was standing at the point, and in the attitude aforesaid, and as the Saltair train was passing by him, she saw some of the passengers waiving their hands and making motions towards him and also saw him waving his hands to them. In an instant thereafter she also observed an engine, with several cars, passing west on the south track, and at about that time the engine sounded several shrill blasts of the whistle, and its speed was apparently being checked somewhat, but it was running so fast that it almost instantly reached the point where the deceased was standing, whereupon he was struck, and she saw no more of him until a few minutes thereafter when she went to where he was lying dead near the engine, which had come to a stop within or along the west margin of Eighth West Street.

A little girl, about twelve years of age at the time of the accident, a sister of the young woman whose testimony we have just referred to, also saw the deceased standing between the tracks, but she says he was standing further west than her sister stated he was. The little girl further testified that before the deceased crossed over the south track she saw him riding a bicycle delivering papers, with a paper sack over his shoulder, and that in going north, and when he arrived at the south track, he got off the bicycle and walked across the south track, then turned west between the tracks and stood still near the north rail of the south track with one leg over the bicycle frame, and that in that position he stood apparently waiting for the Saltair train to pass by him. This witness also said that the deceased stood at the point in question for several minutes, but she too conceded that her judgment with respect to time was not good. She further said that she saw the passengers waving their hands at the deceased and saw him doing the same thing towards the passengers; that she then noticed the engine with the two cars rapidly approaching the deceased; and that when she saw the engine was about to strike him she turned and ran to her mother. There was also some evidence that, just before the Saltair train was seen coming west, the engine in question was seen to be standing still on the south track some distance to the east.

Two passengers who were riding on the Saltair train also testified with respect to what they observed. Both of them said that the deceased was standing on or near the sidewalk running north and south on Eighth West Street. One of them seems to have paid particular attention to the deceased from the time he first noticed him standing, as the witness says, in a perilous or dangerous position, to the time when he was struck. This witness was riding in an open car. He says that he first noticed the deceased when the car on which the witness was riding was about seventy feet east of the place where the deceased was standing. The witness also noticed the engine with the two cars running on the south track, and says that the engine was running at a rate of from fifteen to twenty miles an hour. The engine was running backward with the tender towards the deceased. When the witness first noticed the deceased the engine was about sixty feet to the rear or east of the car on which the witness was riding, and he at once perceived that unless the deceased changed his position he would be struck by the oncoming engine. The witness and others on the Saltair train who also saw his perilous position tried to attract the attention of the deceased by shouting and waving their hands to apprise him of his danger, but the latter did not seem to comprehend their purpose and simply waived his hands at them. At about this moment it seems the position of the deceased was also noticed by at least one of the two railroad men who were riding on the tender, one on the north and the other on the south side thereof, and immediately thereafter the engineer on the engine sounded several shrill blasts of the whistle, which were heard by about all of those who testified, but the deceased apparently did not hear them, at least he seemed perfectly oblivious to the danger threatening him. The testimony of this witness was on the main points corroborated by another passenger on the Saltair train, and they both say that the whole transaction happened in a few moments or seconds of time. The testimony all is to the effect that the engine and cars were running at a rate of speed of from fifteen to twenty miles an hour, and that the efforts of the engineer to stop the engine, after he was apparently apprised of the danger to which the deceased was exposed, were all in vain, although he did stop the engine after the deceased was struck and before the cars had passed entirely beyond Eighth West Street.

From the whole evidence it is quite clear that if the...