Olson v. Oregon Short Line Railroad Co.

• Citation: 24 Utah 460,68 P. 148
• Decision Date: 26 March 1902
• Docket Number: 1352
• Court: Supreme Court of Utah
• Parties: EMIL OLSON, MINNIE OLSON and BERTHA OLSON, Infants, by INGRID OLSON, their Guardian ad litem, and INGRID OLSON, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

68 P. 148

24 Utah 460

EMIL OLSON, MINNIE OLSON and BERTHA OLSON, Infants, by INGRID OLSON, their Guardian ad litem, and INGRID OLSON, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1352

Supreme Court of Utah

March 26, 1902

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action to recover damages arising from defendant's alleged negligence resulting in the death of August Olson. From a judgment in favor of the plaintiffs, the defendant appealed.

AFFIRMED.

P. L Williams, Esq., George H. Smith, Esq., and J. W. N Whitecotton, Esq., for appellant.

The trial court erred in permitting testimony to be given with reference to the speed of the train. Bunnell v. Rio Grande Western Railway Company, 13 Utah 314.

The lower court erred in admitting testimony with reference to the lower crossing at Harrisville, as to the amount of traffic that was in the habit of passing over it daily.

The testimony in this case shows that the lower crossing over which the deceased had passed before reaching the crossing where he was killed, was some 700 feet south of the one where the accident occurred. Morse v. Minneapolis & St. L. Rd. Co., 30 Minn. 465, 11 A. and E. Railroad Cases, 168; Pattee v. Chicago, Mil. & St. Paul Rd., 5 Dak. 267, 34 A. & E. Railroad Cases, 399; Missouri P. Railroad Co. v. Mitchell, 75 Texas 77, 12 S.W. 810; Stewart et al. v. Evarts, 76 Wis. 35; Pierce on Railroads, page 293.

Where the court gives instructions correctly stating the law, and afterwards gives another, nullifying the first, the judgment will be reversed. Thompson on Trials, sec. 2326; People v. Hancock, 7 Utah 170; People v. Berlin, 10 Utah 39; People v. Campbell, 30 Cal. 312; Brown v. McAllister, 39 Cal. 573-577; People v. Anderson, 44 Cal. 65; Chidester v. Con. P. Ditch Co., 53 Cal. 56; Harrison v. Spring Valley Hydraulic Gold Co., 65 Cal. 376.

Defendant was entitled to a judgment of non-suit. The quantum of care to be exercised by a traveler at a railroad crossing is definitely prescribed by law, and a failure to observe any of the requirements so prescribed precludes his recovery, and under such circumstances the court should instruct as a matter of law that the plaintiff can not recover. Burgess v. Salt Lake City Rd. Co., 17 Utah 406; Silcock v. R. G. W. Ry. Co., 22 Utah 179; Herbert v. Southern P. Co., 121 Cal. 227; Salter v. U. & B. Ry. Co., 75 N.Y. 273; Ry. Co. v. Huston, 95 U.S. 697; Beech on Contributory Negligence, secs. 63, 83, 181 and 184; 3 Elliott on Railroads, secs. 1163 to 1166, and 1179; 2 Thompson on Negligence (Ed. of 1901), secs. 1637 to 1643, both inclusive.

J. D. Call, Esq., C. C. Richards, Esq., and E. M. Allison, Jr., Esq., for respondents.

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

OPINION

MINER, C. J.

STATEMENT OF FACTS.

This action was brought by Ingrid Olson, widow of August Olson, and by Emil Olson, Minnie Olson, and Bertha Olson, infant children of August Olson, by their guardian ad litem, Ingrid Olson, their mother, heirs at law of August Olson, deceased, against the defendant corporation, to recover damages arising from defendant's alleged negligence in causing its engine and passenger train to approach a public crossing on its railroad track at Harrisville, Utah, at a dangerous and unreasonable rate of speed, of about fifty miles an hour, without giving any signal or warning of the approach of said train by ringing the bell of the locomotive or sounding the whistle, thereby causing the collision of said train with said August Olson, deceased, who was then traveling along said highway and crossing on a wagon, and was on said track, endeavoring to cross the same, resulting in the death of Olson. Judgment was entered for the plaintiffs, and defendant appeals.

It appears that Olson was a man of about forty-eight years of age, with a family; that his business was that of hauling freight between Ogden and Brigham City; that on December 14, 1897, at about four o'clock in the afternoon Olson started from Ogden to go to Brigham City, with a team of three horses hitched to a loaded double-box wagon, with covers over the bows of the back part of said wagon; that, while attempting to cross the railroad track from south to north, Olson was run into by a south-bound passenger train and was killed. The track at this point runs from northwest to southeast, at an angle of about twenty-six degrees, and from one-half mile north to same distance south is built upon a grade of about twelve feet to the mile descending south. Olson was sitting on the front end of the box, outside of the cover, driving his team. It was a cold, stormy, windy night. It was snowing, and rain was being blown from the northwest, and there was a heavy wind, which made some noise, and the night was very dark. Evidence was given tending to show that the train was running down grade at about fifty miles an hour. Its regular time was about thirty miles an hour. It left Brigham City, as some witnesses testify, ten or fifteen minutes late. Some of the witnesses residing near the crossing testify that the train was running faster at this point than they ever saw it run before. There was a whistling post forty-one rods north of the crossing where the collision occurred. Plaintiffs' witnesses testify that no whistle was sounded or bell rung on the engine at the whistling post, and not until a moment before the engine struck the deceased. The whistle and the collision were almost instantaneous. The crossing was a public highway, and was extensively traveled and used for all purposes. Five hundred and fifty feet southeast of the crossing, by the side of the track, is a passenger platform, used to receive and deliver passengers for trains. One hundred and thirty feet still further south is another public crossing over the railroad track. About one hundred teams cross these crossings daily, and the engineer knew of the crossings, and knew that they were traveled extensively. About forty-six families resided in Harrisville, along the highways leading to the crossing, but no store or schoolhouse is located there. Black willows and trees were growing along the right of way for some distance north of the crossing, and on the west side of the road on which Olson was traveling. Near the track there was a large bunch of willows. The witnesses differ as to what extent these willows would obstruct Olson's view. Some of them say they were twelve or thirteen feet high. Others say they would obstruct the view of the headlight at the crossing, and that a person could not easily see the headlight on a train while passing behind the willows to the north. The grade of the track continued northwesterly from the crossing half a mile to some poplar trees and willows, and from this point the track was on a descending grade.

MINER, C. J., after stating the facts, delivered the opinion of the court:

The respondents have filed a motion to strike from the record the bill of exceptions and abstract in this case on the ground that the bill was not settled, allowed, signed, and filed within ninety days after the entry of judgment, or notice thereof, after the determination of the motion for a new trial, as provided by section 3286, Revised Statutes 1898. It is conceded that it was not settled within the ninety days allowed by the above section, but it is contended that the trial court extended the time for such settlement beyond the ninety days, in accordance with the practice and laws of the State. Section 3286, Revised Statutes 1898, so far as we now deem it material, reads as follows: " A bill of exceptions shall in all cases be prepared, settled, signed, and filed within ninety days after the entry of judgment, or after notice of the same if the action were tried without a jury, or after the determination of a motion for a new trial." If this and other provisions of the statute contained no limitation that would affect the clause quoted, the respondents' contention might be considered tenable; but when we refer to other parts of the section we find that the appealing party has thirty days after judgment, or the determination of the motion denying a new trial, in which to prepare and serve the bill of exceptions. The opposite party has ten days thereafter in which to prepare and serve amendments thereto. The bill and amendments must within ten days thereafter be presented to the judge, upon five days' notice, or by delivery to the clerk, for the judge, for settlement. When received by the clerk, he must immediately deliver them to the judge, if he be in the county. If he be absent from the county, and either party desires the papers to be forwarded to the judge, the clerk must, upon notice in writing from such party, immediately forward them to the judge by mail, or other safe channel. If not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received the judge fixes the time for settlement, and the parties are to be notified. Under this section it will be readily observed that if the judge is absent from the county on business pertaining to his office in his district for any considerable length of time, or if the papers are not mailed, or he does not receive the papers, or becomes sick, the bill may not be settled within the ninety days allowed by this section. Section 3329, Revised Statutes 1898, reads as follows: "When an act to be done as provided in this Code relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation of bills of exception or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this Code may be...