Peck v. Oregon Short Line Railroad Co.

• Decision Date: 18 June 1902
• Docket Number: 1363
• Citation: 25 Utah 21,69 P. 153
• Court: Utah Supreme Court
• Parties: ELISHA PECK, JR., Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

69 P. 153

25 Utah 21

ELISHA PECK, JR., Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1363

Supreme Court of Utah

June 18, 1902

Appeal from the Fourth District Court, Utah County.--Hon. J. E Booth, Judge.

Action to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant company in the operation of its railroad. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

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

It is true only a few State courts have held that at ordinary crossings when there is an unobstructed view of the track, it is necessary for the traveler to stop, look, and listen, evidently for the sufficiently good reason, that he can see without stopping. But when he can not see on account of obstructions, we think the rule is well settled in all jurisdictions, that he must listen attentively, and if he is riding in a vehicle that makes a noise, he must stop the vehicle and the noise, so that his listening may be to some purpose. If that is the law (and that it is we have no doubt), then the court erred in refusing to instruct the jury as requested in defendant's first request, that it was the duty of the plaintiff to stop, and look, and listen, and erred in refusing to charge as requested in defendant's seventh request, to return a verdict for the defendant.

Messrs. King, Burton & King, for respondent.

Speaking of the rule announced in the words "stop, look and listen," Mr. Beach says: "But this rule has not met with general acceptance, though some courts apply it where there is an obstruction to the view." Beach on Contributory Negligence, pp. 268-9.

"The fundamental rule concerning the care to be exercised at a public railroad crossing by a traveler is that he must exercise that degree of caution usually exercised by prudent persons, conscious of the danger to which they are exposed at such crossings. If a crossing is peculiarly dangerous, a corresponding increase of caution is required. The general rule would, of course, demand that a vigilant use should be made of the eye in looking, and of the ear in hearing. The failure to exercise these faculties by one approaching a crossing would be such a departure from the observance of that degree of caution exercised by prudent persons at such crossings as to raise, under ordinary circumstances, an inference of negligence, about which reasonable men would not disagree. . . . The Pennsylvania rule, which seems to make it the duty to stop under all circumstances, regardless of obstructions to the view or obstacles to the hearing, has not met with general acceptance, and seems much calculated to condone carelessness and recklessness by railroad companies at public crossings, where the rights and duties of the public and of the company are reciprocal. Neither are we prepared to say that the duty of stopping is imperative in all cases where the track is obscured." Railroad v. Farra, 66 F. 496.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

--This action was brought to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant in the operation of its railroad. It was alleged in the complaint, among other things, that the accident which resulted in this suit occurred in the city of Lehi, where the defendant's railroad track crosses one of the public streets; that there was an ordinance prohibiting the running of trains at a greater rate of speed than eight miles an hour within the inhabited portions of the city; that on the occasion of the accident the train was running at a rate of speed greater than that allowed by the ordinance, and was run carelessly in approaching the crossing; and that neither its whistle was sounded nor its bell rung. From the evidence it appears that the accident happened on the morning of December 4, 1899, in the inhabited portion of the city of Lehi, at a point where the defendant's railroad track crosses Peck street; that in approaching the crossing along Peck street the plaintiff's view of the railroad to the south--the direction from which the train in question came--was obstructed by a grove of trees, underbrush, and a small house, except that before reaching the house, which is about twenty-five feet from the railroad track, an approaching train might have been seen at one place by looking through the grove of trees; that on the morning of the accident the plaintiff was driving his team, consisting of two horses and a wagon, along Peck street toward the railroad on a trot, but before reaching the crossing he reduced the speed to a slow walk; that in approaching the crossing he looked and listened for trains, but did not stop; that as he had passed the obstructions, which interfered with his view, and saw the train, his horses were stepping upon the track, and before he could back them off the engine struck them, and caused the injuries complained of; that it was a passenger train, running at the rate of at least fifteen--some witnesses say thirty-five to forty--miles an hour, the ordinance providing for a rate of speed at that place not to exceed eight miles an hour; and that this train was fifteen minutes late, and the plaintiff thought it had passed. As to whether the whistle was sounded either for the crossing or station, and as to whether the bell was rung, there is a conflict in the evidence, but the proof seems to preponderate against the defendant on these points. Upon the submission of the case to the jury a verdict in the sum of $ 4,650 was returned in favor of the plaintiff, and judgment was entered accordingly.

On this appeal various assignments of error are based upon the admission and rejection of evidence, but upon careful examination and consideration we are of the opinion that none of them are fatal to the judgment. It is, however, further contended that the court erred in refusing to submit to the jury appellant's request which reads as follows "The duty of a traveler upon a highway at a railroad crossing to look and listen and to use care for the purpose of discovering the approach of the train before undertaking to pass over the railroad exists upon every occasion of his approaching such crossing. He is not relieved or excused from exercising the care required of him for the reason that he approaches such crossing shortly after a regular train is due, or supposed by him to have passed, or in fact has passed. The railroad track itself is an admonition of danger, and the railroad company has a right to run its train over the track at regular periods, or as special or extra trains, or in the event of their being behind time, the same as upon the regular schedule; and the obligation to look and listen is one from which the traveler is at no time excused upon approaching and preparing to cross a railroad at grade." Instead of giving the above request verbatim, the court charged the jury in language following: "Negligence of the defendant in the omission to sound its whistle or ring its bell, or in running its locomotive and cars at an unusual or unlawful rate of speed, if you find such was the case, did not relieve the plaintiff from the exercise of care on his part to avoid the accident complained of. It was his duty, on approaching the railroad track, to use his senses of sight and hearing to ascertain whether or not a train was approaching upon the railroad track from either direction; and if there was a grove of trees or obstructions or other objects that intercepted his vision, and prevented him from seeing the approaching train, in the direction in which it came, then the law imposed upon him greater care to discover whether or not the train was approaching, by the exercise of the sense of hearing. Therefore, the court instructs you that if you find that the defendant was guilty of either or any of the negligent acts of commission or omission charged in the complaint, and you further find that the plaintiff, as he approached the track at the point where the accident occurred, could have discovered the approach of the train by looking and listening, but that he omitted to exercise such care, and was careless and negligent, and thereby, and as a consequence thereof, because of his negligence, omitted and failed to discover the approach of the train until it was too late to avoid the accident, then the injury of which he complains was the result not of the sole negligence of the defendant, but was a result of his own negligence co-operating with that of the defendant, if you find that the defendant was so negligent--then in that event the plaintiff would not be entitled to recover in this case." The court further charged that "the rights of a traveler on a highway at a point where it is crossed on a level by a railroad are so far subordinate to the railroad company as to require the traveler to give way to any train which is in sight or hearing and approaching said crossing, and so near said crossing as to make it doubtful whether he can cross in perfect safety." From a comparison of appellant's request with these instructions, it is obvious that the refusal to charge in the exact language requested was not error. In its instructions the court gave not only the substance of the request, and charged the jury that the plaintiff was bound to make use of his senses of sight and hearing, and to use reasonable care to discover the approach of the train, and that his rights at the crossing were so far subordinate to those of the railway company that he was required to give way to the train if in sight or hearing, but further instructed them, in effect, that,...