Olsen v. Oregon Short Line & Utah Northern Railway Co.

• Citation: 9 Utah 129,33 P. 623
• Parties: JOHN J. OLSEN, RESPONDENT, v. OREGON SHORT LINE & UTAH NORTHERN RAILWAY COMPANY, APPELLANT
• Decision Date: 12 June 1893
• Court: Supreme Court of Utah

33 P. 623

9 Utah 129

JOHN J. OLSEN, RESPONDENT, v. OREGON SHORT LINE & UTAH NORTHERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 12, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. Hon. Charles S. Zane judge. The opinion states the facts.

Affirmed.

Messrs Williams and Van Cott, for the appellant.

The instruction should have been given that the plaintiff should have stopped before venturing on the track. 2 Rorer on Railways, pp. 1061-1065; 2 Wood's Railway Law, pp. 1301-1332 and notes; Patterson's Railway and Accident Law, p. 168, note 4; 2 Shearman and Redfield on Negligence, sec. 476, notes; Wilds v. Railway Co., 24 N.Y. 430, 440; Railway Co. v. Adams, 6 P. 529; Railway Co. v. Houston, 95 U.S. 697; Schofield v. Railway Co., 114 U.S. 615; Brickell v. Railway Co., 42 Am. and Eng. Ry. Cas. 107. All courts are agreed that where there are special circumstances of danger, it is the duty of the traveler not only to look and listen, but to stop. Merkle v. Railway Co., 9 At. Rep. 680; Brady v. Railway Co., 45 N.W. 1110; Dumming v. Bond, 38 Feb. Rep. 813; 2 Rorer on Railways, 1061-1062; 4 Am. and Eng. Encyc. Law, 947, note; Schafert v. Railway Co., 17 N.W. 893; McCrary v. Railroad Co., 31 F. 531; Fleming v. Railway Co., 49 Cal. 253; Allen v. Railway Co., 19 At. Rep. 105; Railway Co. v. Howard, 24 N.E. 892. Therefore the two requests that if plaintiff knew the place and that it was difficult to see or hear trains approaching, or that it was not safe to cross without stopping his team, then it was his duty to stop, ought to have been given.

The whole theory of the instructions given is that a traveler has an equal, if not a superior, right at the crossing in question, when the rule is well settled that a railway train has the preference. Dumming v. Bond, 38 F. 815. And the theory of the court that one is excused when the train is behind time or is being run as a special is equally wrong. Slater v. Railway Co., 75 N.Y. 281; 2 Wood's Railway Law, 1304-5; Schofield v. Railway Co., supra; Railway Co. v. Howard, 24 N.E. 892; Brady v. Railway Co., 45 N.W. 1110.

The court also erred in refusing to give the instruction that positive testimony is better than negative. 19 Ill. 499; 71 Am. Dec. 236, 239, note; 9 F. 867.

Messrs. Ferguson and Cannon, for the respondent.

MINER, J. BARTCH, J., concurred.

OPINION

MINER, J.:

This action was brought in the third district court to recover damages for injuries sustained by the respondent to himself and to his horses, wagon, and harness while crossing the railroad track of the appellant. It appears from the testimony offered on the part of the respondent that about 6 o'clock P. M., on February 14, 1891, the respondent was traveling from east to west on a public highway near Bingham Junction, driving a span of horses attached to a covered lumber wagon, containing several cumbersome articles. As he approached the crossing in question, and several hundred yards from it, respondent saw the regular passenger train going north over the crossing. Between this track and the wagon road there was a row of large trees which paralleled the track, the butts of which trees were about 18 feet from the track, with branches extending out. Below these trees there was a hedge about eight feet high. Along the south side of the wagon road were two rows of shade trees, quite bushy, and between the row of trees that paralleled the railway track and those paralleling the wagon track was an orchard, a house, a barn, stack yards, haystack, stables, granary, etc., which rendered it extremely difficult, if not impossible, for the respondent to see an approaching train from the south, excepting in one or two small places, where it is barely possible to see through to the track. After the regular train passed, the respondent continued to drive slowly and on a walk towards the crossing. The respondent testifies:

"After turning the corner, I did nothing only look out for a train, to see if any more trains were coming. I looked both ways, south and north, and listened also for a whistle or bell. On getting nearer the track, towards the house and barn and orchard, I was more careful to look out. I leaned forward, with my head out of the front end of the wagon, because I had the cover right to the end gate, and the track came from the southeast to the northwest, and I was in that position in order to have a view towards the track, and it is difficult to discover a train at that place, especially when the train is running fast. I neither saw nor heard any train, but only a whistling noise from the trees, because there was a big wind. I heard nothing else, except the noise of the wagon. About eighteen feet east of the track, I commenced to have a view of the same, and could see nothing; but as the horses passed upon the crossing, I noticed a train coming, running as fast as a shot, and I then tried to stop my team, but do not know whether I stopped it or not, because the engine struck me just like a shot. The train was running towards the north, and I heard neither the bell or the whistle. I could have heard them if sounded. My hearing was good. I found some days after that the train had carried me fifty yards from the crossing. The wagon was broken to pieces, and the horses killed. My head was badly cut, and my right shoulder dislocated, and I have not been able to work since. I could not lift three pounds, even, with my shoulder."

Other testimony was offered by the respondent tending to corroborate his testimony. It also appears that the train causing the injury was a special one, consisting of a locomotive and caboose, running at the rate of 30 to 35 miles an hour. Contrary to the custom of the company, neither the engine nor car had brakes upon them. There was no cow-catcher on the engine. It also appears from the testimony of several witnesses that the appellant failed to sound its whistle or ring the bell, as required by the statute, or give any other warning or notice of its approach. Respondent did not stop his team on nearing the track before crossing, but looked both ways, up and down the track, continually. When the horses' feet were on the track, a person in a wagon going west can see only a short distance south along the track. It also appears by the testimony of other witnesses that only a second or two intervened between the whistle from the engine and the accident, and that the bell did not ring. A strong wind was blowing from the south at the time. Testimony offered by the appellant tended to show that the whistle was sounded and the bell rung more than 80 rods south of the crossing; that the special train was running from 18 to 20 miles an hour at the time; and that the whistle was sounded for the crossing; and that the respondent was familiar with the obstructions to the view of passing trains at this point.

The counsel for the railroad requested the court to give instruction to the general effect that if the plaintiff knew that it was difficult to see and hear trains approaching at the crossing in question, that the crossing was dangerous, and that it certainly could be discovered by looking and listening, then it was his duty to stop his team, and listen for approaching trains, before crossing, and, if he did not do so, he could not recover in the action; that, if there is evidence in the case that the engine whistle was sounded, that some of the witnesses did hear it, and others did not hear it, evidence that the whistle was sounded is stronger and more worthy of belief than evidence that others did not hear it. The judge refused to adopt the instructions as presented by the counsel, but charged, in effect, that "(2) In order to determine the question as to whether either party was negligent, you should take into consideration the circumstances and conditions with which they were surrounded, and you have a right to take into consideration the fact (if you believe it from the evidence) that there were obstructions to the view of the track or train from the road on which the plaintiff was traveling, and whether the train was a special one, and not a regular train, and whether there was a high wind, or otherwise. If you believe that there were obstructions to the view of the crossing, and that there was a high wind, or any other fact existed that would affect the conduct or action of a reasonable man, then both plaintiff and defendant would be required to use greater care. The care should be in proportion to the danger.

"(3) If you believe that the regular train had passed, and the plaintiff had seen it, and that this was a special train, you have a right to take that fact into consideration in determining the question as to the care used by the plaintiff. You, in fact, should determine whether the parties used the amount of care that they should have used as reasonable men under the circumstances. You should take into consideration all the circumstances with which they were surrounded at the time.

"(4) The burden is upon the plaintiff to prove negligence upon the part of the defendant that caused the injury. The burden is upon the plaintiff to show by a preponderance of the evidence that the defendant or its servants were guilty of negligence and that that negligence caused the injury, and the burden is upon the defendant to show want of care upon the part of the plaintiff, unless the evidence of the plaintiff tends to show it.

"(5) The...