Rainey v. Oregon Short Line R. Co.

• Decision Date: 04 December 1924
• Docket Number: 4190
• Court: Utah Supreme Court
• Parties: RAINEY et al. v. OREGON SHORT LINE R. CO

231 P. 807

64 Utah 445

RAINEY et al. v. OREGON SHORT LINE R. CO

No. 4190

Supreme Court of Utah

December 4, 1924

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action for personal injuries by Catherine Rainey and Peter L. Rainey against the Oregon Short Line Railroad Company. Judgment for defendant, and plaintiff appealed.

AFFIRMED.

Willard Hanson, J. J. Whitaker, and A. H. Hougaard, all of Salt Lake City, for appellant.

George H. Smith, J. v. Lyle, Robert B. Porter, and Dana T. Smith all of Salt Lake City, for respondent.

FRICK J. WEBER, C. J., GIDEON and CHERRY, JJ., and McCREA, District Judge, concur. THURMAN, J., did not participate.

OPINION

FRICK, J.

Catherine Rainey and Peter L. Rainey, her husband, pursuant to the statutes of Idaho, commenced this action in the district court of Salt Lake county as plaintiffs against the defendant to recover damages for personal injuries, which, it is alleged, Catherine Rainey sustained through the alleged "wanton and willful" negligence and misconduct of defendant's employees. In view that no damages are sought on behalf of Peter L. Rainey for any injury he sustained, Catherine Rainey will be considered as the sole plaintiff in this action.

The defendant answered the complaint denying the alleged negligence and set up affirmative defenses, as will hereinafter more fully appear.

The case is somewhat unusual in its facts and circumstances. A careful reading of the evidence, all of which is preserved in the bill of exceptions, discloses substantially the following facts:

Peter L. Rainey, the husband of the plaintiff, was employed by the defendant in the capacity of fire chief in defendant's railroad yards at Pocatello, Idaho. The defendant owns rather extensive railroad yards in Pocatello, containing a large number of shops, warehouses, and other buildings, together with such other property that is used in connection with the operation of its line of railroad known as the Oregon Short Line, which it owns and operates in the states of Utah, Idaho, and Oregon, with numerous branch lines. It was the duty of Peter L. Rainey to pass through the yards of the defendant from time to time for the purpose of detecting and preventing fires. In discharging his duties he at times would go through the yards on a bicycle and sometimes on foot. On the 9th day of April, 1923, some time after 5 o'clock p. m., Mr. Rainey, in entering upon a tour of inspection through the yards, invited his wife, Catherine Rainey, to accompany him in his Dodge automobile. Mr. Rainey testified that a little after 5 o'clock was the usual hour in the evening to make an inspection, for the reason that the workmen quit work at 5 o'clock and by making the rounds at that hour he could observe-whether the workmen had left the fires they were using during the day in a safe condition. On the evening in question, Mr. Rainey had been using his automobile for some other purpose on the streets of Pocatello, where he met and invited his wife to take a ride, and they together started on a tour of inspection in the automobile through the railroad yards. In the hope of aiding the reader to a clearer understanding of what follows, we here insert a sketch of that part of the railroad yards in which the accident occurred:

[SEE SKETCH IN ORIGINAL]

It will be observed that the left-hand side of the sketch is north. The sketch is drawn to scale and is a facsimile, although reduced in size, of the large map which was introduced in evidence at the trial. Figure 1 on the sketch represents the "coach shop," which is a large building. Figure 2 represents the "steel car shop extension," which is another large building and is immediately east of the coach shop. Figure 3 is what is called the "eating house." Figure 4 is a sign requiring the employees to keep the crossing clear for the fire engine. Figure 5 is a sign warning the employees to "stop, look and listen" before crossing the railroad track. The main railroad track on which the accident occurred is indicated by the letters R. R., and the other lines running parallel with the main tracks are other tracks used for various purposes, the letters P P indicated a passageway 10 1/2 feet wide which was used by the employees, including Mr. Rainey, in passing through the yards. On the evening in question, about 5:30 o'clock, Mr. Rainey and his wife, the plaintiff, were riding in an automobile on the passageway, marked "P P" in an easterly direction, that is, in the direction indicated by the arrow on the curve of the passageway. At the same time a train, consisting of four cars and an engine and tender, was being backed or switched on the main track in a southerly direction; that is, in the direction indicated by the arrow near the letters R. R. The building, Figure 1, is a tall building, the east wall of which is about 19 feet from the center of the track marked "R. R." The testimony shows that in switching the cars there were five men in the crew, the engineer, the fireman, two switchmen, and the switch foreman. The switch foreman was, however, not with the train crew at the moment the collision occurred. Just before the collision occurred, Mr. Rainey was driving his automobile eastward toward the track, R. R. In approaching the track he drove south of the building, figure 1, and, while driving there, could not see the railroad track or the train of cars that was being moved south on the track at a rate of about six miles per hour toward the crossing, marked "C." The trainmen could not see Mr. Rainey's car, until it had passed to the east of the building, figure 1. The fireman and one of the switchmen were on the west side of the train of cars, while the other switchman was on the rear end of the last car and on the east side of the same. The fireman testified that he saw Rainey's car after it came from behind the wall of the building, figure 1, and at the moment told the engineer to stop the train. At about the same moment the switchman gave the engineer a stop signal. While the fireman testified that Mr. Rainey was traveling at a rate of about 20 miles per hour, the latter insisted that he was going much slower than that. As a matter of fact, however, Mr. Rainey could not stop his automobile, nor could the trainmen stop the train, in time to avoid the collision which occurred on the crossing marked "C." The rear end of the car on the train was what the trainmen call a coach or outfit car with steps on both sides like a passenger coach. The rear car shoved the automobile along on the track until it reached the point marked "X," at which point the automobile was wedged between the east side of the car and the west side of the building, figure 2. The distance between the outer edge of the easterly rail and the wall of the building is 5 feet 3 inches. After the rear car had passed some 12 or 14 feet southerly from the southwest corner of the building, the train stopped. The front end of the automobile was to the north, while the rear was to the south. The front end of the automobile was forced against the wall of the building, while the right-hand rear wheel was not quite against the wall. When the train was finally stopped, Mrs. Rainey, the plaintiff, was lying under the front part of the running board on the right or east side of the automobile with her feet to the north and her head to the south, while Mr. Rainey was lying on the top of the same running board with one leg and foot under it and his head on the rear fender.

At this point there is some conflict between the testimony of Mr. Rainey and the trainmen. Mr. Rainey says that, when he found the automobile was wedged in between the railroad coach and the building, he said to the trainmen, "For God's sake, don't move the train; you will kill my wife." He, however, also admitted that he had testified that what he said was this: "For God's sake, get my wife out of here before they kill her." He, however, explained that in making the two statements he meant the same thing. Upon the other hand, the trainmen testified that they did not hear Mr. Rainey make the foregoing statement and that he made no statement. They, however, said that Mrs. Rainey was crying and was asking to be relieved from her perilous situation. The trainmen went around the rear end of the coach between it and the building as far as they could, and, after looking over the situation, came to the conclusion that in order to relieve Mrs. Rainey the pressure upon the automobile would have to be released, and that it could only be released by moving the railroad coach forward or toward the north. In order to do that they concluded to move the train forward toward the north, which was accordingly done.

At this point the statements of Mr. and Mrs. Rainey and the trainmen again conflict. Mr. and Mrs. Rainey said that the movement of the train forward caused the automobile to move with the train, and that the movement caused Mrs. Rainey's most serious injury, while the trainmen said that the automobile did not move at all, and that the only result of the moving of the train was to release the automobile, which the trainmen then lifted aside, and thus released Mrs. Rainey from her perilous position.

We remark here that although there is a conflict as herein indicated, yet the conflict is not material in view of the conclusion we have reached, as hereinafter indicated.

Immediately after the train was moved forward, Mrs. Rainey was taken from under the automobile and was taken to building, figure 3, and there temporarily cared for, while Mr. Rainey was cared for outside of the building.

The trainmen testified that the only way to release the automobile from the pressure caused by the railroad coach against it was to move...