Pratt v. Utah Light & Ry. Co.

• Decision Date: 11 February 1911
• Docket Number: 2148
• Citation: 38 Utah 500,113 P. 1032
• Parties: PRATT v. UTAH LIGHT & RAILWAY COMPANY
• Court: Utah Supreme Court

113 P. 1032

38 Utah 500

PRATT v. UTAH LIGHT & RAILWAY COMPANY

No. 2148

Supreme Court of Utah

February 11, 1911

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

Action by Annie E. Pratt against the Utah Light & Railway Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

Evans &amp Evans for appellant.

P. L Williams, Geo. H. Smith and F. K. Nebeker for respondent.

FRICK C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

Appellant was injured by being struck by a street car while she was in the act of crossing one of respondent's tracks, and she brought this action to recover damages.

In her complaint she alleged that the respondent was negligent (1) because the car with which appellant collided was not equipped with "a sufficient guard or fender," and that the same was not maintained in good repair; (2) that the car was not provided with "a good and sufficient headlight;" and (3) that respondent "carelessly and negligently ran and operated the car, by reason of which appellant was struck." Respondent denied the acts of negligence, and pleaded negligence on the part of appellant, which it is alleged was the proximate cause of the collision and injury.

Upon these issues the undisputed facts developed at the trial are substantially as follows: On the 19th day of August, 1908, at about eight-thirty or nearly nine o'clock p. m., the night being cloudy and dark, the appellant was walking south on the east side of Seventh East Street. When she arrived at a point a little south of Thirteenth South Street, outside of the southern city limits of Salt Lake City (near Wandemere Park, a summer resort, to the entrance of which place she intended to go to meet her son by appointment), she left the sidewalk on the east side of said street, and started to go either directly or perhaps somewhat diagonally in a southwesterly direction across Seventh East Street toward the entrance to Wandemere Park on said street. While in the act of crossing the street, she met with an accident, and upon that subject she testified as follows: "Q. Do you remember going into the street? A. Yes, sir. Q. Now, do you recollect anything after that? A. No, sir. Q. For how long? A. Well, I would think two weeks, up in the hospital." This is all she testified on direct examination with respect to how the accident occurred, or with regard to what she saw or what happened to her. On cross-examination she said that she was somewhat familiar with the street, and that she noticed that there were to tracks at the point she was about to cross them, and that she distinctly remembered crossing one of the tracks, but remembered no more. At this point in the proceedings the record reads as follows: "Q. When you walked across (the street), did you look to see whether any car was coming in either direction? A. I am sure I don't know. I generally did. Q. I know; but did you on this night? A. I say I don't remember that. Q. Don't remember looking in either direction? A. No, sir. . . . Q. Of course, if you had looked and you had seen it (the car), you would have remembered, wouldn't you? A. I think I would. . . . Q. You say you don't remember whether you looked in either direction at this particular time. Did you? A. No, sir; I don't think I did." She further said that she knew that the street in which she was struck by the car was straight north and south from south of Thirteenth South Street nearly to Third South Street, or for a distance of over ten long city blocks, and that just before the accident she did not hear any car approach, although her hearing was not defective. A witness named. De Gray, who testified on behalf of appellant, in substance said that just preceding the accident he was walking south on the west side of Seventh East Street and had just passed over Thirteenth South Street when he saw the car which struck appellant come from the north; that he had gone some sixty or seventy feet south of Thirteenth South Street when the car came up to and passed him going south. He says: "All at once after the car passed me, I notice an object in front of the car which afterwards proved to be Mrs. Pratt (the appellant);" that he "couldn't say whether she was crossing, standing, going, or coming, . . . because it all happened so quickly, and the light, I suppose didn't throw sufficient to show which way she was facing. Q. Dim light? A. Well, not necessarily dim, I suppose, for a headlight, but it wasn't one of those searchlights." He further says that the headlight was an "ordinary headlight, such as you see in common use." The witness further testified that, when he saw appellant on the track ahead of the car, it had passed south of where he was walking, so that it immediately passed between him and appellant, but he thinks he saw that she was struck by the car because she seemed to fall. With respect to the speed, he said, "I should judge they were going moderately," and that the car was quickly or suddenly stopped. As soon as the car stopped, he immediately went in front of it, and found the appellant under the forward part of the car under the fender. She had not been touched by the wheels of the car, but she was unconscious.

Mr. Davidson, another witness called on behalf of appellant, testified: That he with others was riding on the front platform of the car in question at the time of the accident; that it was dark and cloudy, and that he was standing by the motorman; that the rays of the headlight were thrown twenty-five or thirty feet ahead of the car; that he saw a lady on the track in front of the car. "Q. Did you see her as soon as the rays of light were thrown upon her? A. Well, I should judge so. She got just in the vision of the flash of it once. . . . Q. Now, was the motorman looking in that direction? A. Yes, sir. Q. What did he do, if anything? A. Sounded his gong, shut off his power--well, everything he could do, it seemed to me, and shouted. Q. With respect to the time he saw her you may state how soon it was that the brakes were shut down. A. Well, it seemed to me the same time I saw it. Q. How quick did this all happen? A. Well, in time I can't say. All at once, all came at once." He also said that the car had slowed down on Thirteenth South Street just before the accident, but had gained headway again, and at the time appellant was first seen on the track the car was running "about medium speed;" that, when he saw her on the track, it all happened so suddenly that he "couldn't say whether she was walking or standing still." At the point the accident occurred the street was not artificially lighted.

Another witness, named Rose, in substance, testified that at the time of the accident he was standing at the gates of the park; that he observed the car coming south. He further said: "I suppose it (the car) had gone maybe a block or more, a city block;" that he noticed that the car had stopped; that he noticed the headlight on the car; that the headlight was "the kind ordinarily used by the street railway company, only at times it was very dim;" that he did not think it would throw its rays "to exceed twenty feet;" that he was "possibly a half or three-quarters of a block away" from where the appellant was struck.

There was other evidence corroborative of the foregoing, but none in conflict with it. It also appeared that inside of the park proper, and at considerable distance from where the accident occurred, there were music and other noises that usually occur at such amusement places where a large crowd is assembled, as was the case on the evening in question. The point where appellant attempted to cross the tracks, and where she was struck, is about five hundred feet north from the entrance or gates of the park. Nothing is made to appear with regard to the character of the place, only that there was no public crossing at that point; that is, that the collision occurred at a point which was some distance from a street or other public crossing. There is no evidence with regard to the guard or fender other than that the car was equipped with the ordinary fender in use by the respondent; that this consisted of a hood or apron extending across the front of the car, and a guard or fender held up from the rails by some device under the front part of the car, and was in front of the forward wheels; that, when an object came in contact with the hood with any considerable force, the impact would cause the fender to be released from the aforesaid device, and it would fall and rest upon the rails, and in that way was intended to prevent objects which were of considerable size, including persons from passing under the wheels; that the motorman could also cause the fender to drop down on the rails by stepping on a bolt which for the purpose was conveniently placed on the platform of the car. There is no direct evidence whether the fender dropped or not. In view that it passed over appellant, the inference is that it did not drop, at least not in time to prevent appellant from passing under the wheels. As the car was stopped, however, before the wheels touched her, the fact that the fender did not drop is not material.

There was also evidence respecting the injuries appellant sustained, but it is not deemed material to state the extent of her injuries on this appeal.

Upon substantially the foregoing evidence the appellant rested her case. Respondent also rested without offering any evidence and moved the court to direct the jury to return a verdict for it upon the following grounds: (1) That appellant had produced no evidence that the respondent had failed to equip its car with a sufficient guard or fender, or had failed to keep the same in good and sufficient repair; (2) that there was no...