Oswald v. Utah Light & Railway Co.

• Decision Date: 06 June 1911
• Docket Number: 2194
• Court: Utah Supreme Court
• Parties: OSWALD v. UTAH LIGHT AND RAILWAY COMPANY

117 P. 46

39 Utah 245

OSWALD v. UTAH LIGHT AND RAILWAY COMPANY

No. 2194

Supreme Court of Utah

June 6, 1911

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Ella E. Oswald against the Utah Light and Railway Company.

Judgment of nonsuit. Plaintiff appeals.

AFFIRMED.

Henderson Pierce, Critchlow & Barrette for appellant.

P. L Williams and H. Thompson for respondent.

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

OPINION

STRAUP, J.

Appellant, the plaintiff below, brought this action to recover damages for an injury to her electric automobile alleged to have been sustained by her through the negligence of the defendant in the operation of an electric engine and flat cars upon a public street of Salt Lake City. The street on which the injury occurred ran east and west. The accident occurred in the daytime in one of the principal business portions of the city. The plaintiff and her daughter, who had been shopping, entered the automobile, which, facing west, was standing in the street near the sidewalk. The plaintiff herself operated the machine. After starting it and moving it a little toward the west she "turned it in a circle so that it faced south" toward the street railway track. Before attempting to cross the track she looked along it towards the east and saw "a black object" on the track, the electric engine, but did not see the three or four flat cars in front of it, pushed to the west and toward her. No one was on the flat cars observing a lookout as they approached, nor was there any gong sounded or bell rung, or other warning signals given of the approach of the cars. The plaintiff, after testifying that she was sitting on the left side of the machine and had looked towards the east along the track as she left the gutter, and saw only the black object on the track about fifty or sixty feet away, testified that, "knowing that I had an abundance of time to cross the street," she drove the automobile a little to the west and then south towards the track, and while crossing, the drawbar of the flat car struck the front left-hand side of her machine about where her feet were, and pushed her machine along the track two or three feet, injuring it. On direct examination she was asked and answered: "Q. State whether or not you observed it (the black object) was a car or an electric engine, or whether you observed what particular kind of street car it was. A. No. sir; I just saw it was a black object up there, and I had plenty of time to get across. Q. Did you notice whether at that time it was moving? A. I did not notice." On cross-examination: "Q. And that thing that you saw in the distance you do not know what it was; you did not know at the time? A. No, sir. Q. And you did not know whether it was standing or moving? A. No, sir. Q. Now, is it not a fact that you had an idea what it was? A. Yes, sir; I may have had an idea. Q. Tell us what that idea was. A. The idea was that whatever it was I had an abundance of time to get across the street." She further testified that she did not see the flat cars in front of the electric engine until the forward car was about two feet away and struck the machine. The flat cars had no sides extending above the floor of the car. The floor was about six inches above the wheels. How high the floor was above the ground or rails is not made to appear. On account of the condition of the weather--somewhat cloudy and rainy--the plaintiff had the hood or top of the automobile up, and in looking east along the track she was required to lean somewhat forward. It is not made to appear, nor is it claimed, that the top interfered with her looking or seeing the electric engine or flat cars, or because of the condition of the weather, or for any other cause, they were not plainly visible. It was alleged in the complaint, and admitted in the answer, that the defendant owned and operated the street railway, and that the cars were operated by it.

The plaintiff had pleaded and offered in evidence the following city ordinance: "It shall be unlawful for any person, firm or corporation owning or operating any street railway within the corporate limits of Salt Lake City, to run any car on or over any track so owned or operated, without having in charge of such car a motorman and a conductor; provided that cars may be run and operated with only one man in charge thereof, if at all times when the car is in motion he shall be stationed at the front end of such car and have charge of the motor."

The court, on defendant's objection, excluded the ordinance, on the theory that it related "only to street cars carrying passengers," and was "enacted for the purpose of protecting passengers riding on cars," and since the electric engine and flat cars were not carrying passengers the ordinance was not pertinent. This ruling is complained of. We think the court erred in its interpretation of the ordinance and in excluding it. The purpose of the ordinance is not only for the protection of passengers on cars, but also for the protection of pedestrians and travelers on and along streets upon which cars are operated, and to avoid collision with and injury to them.

At the conclusion of plaintiff's case the court, on defendant's motion, granted a non-suit on the ground of insufficiency of evidence to show negligence on the part of the defendant, and upon the further ground that the plaintiff was guilty of contributory negligence. This ruling is also assigned as error. In reviewing it we will consider the case with the ordinance in evidence. When so considered the evidence of defendant's negligence was sufficient to require a submission of the case to the jury. Whether the plaintiff was herself guilty of contributory negligence is more serious. The evidence shows that before she undertook to cross the street she looked toward the east and saw a black object, the electric engine, fifty or sixty feet away, but did not notice what it was, whether it was an ordinary car or something else, nor did she notice whether it was standing or moving, nor did she see or notice the three or four flat cars pushed in front of it and towards her. Not noticing the flat cars,...