Riley v. Salt Lake Rapid Transit Co.

• Decision Date: 27 July 1894
• Docket Number: 509
• Citation: 10 Utah 428,37 P. 681
• Court: Utah Supreme Court
• Parties: JULIAN RILEY, RESPONDENT, v. SALT LAKE RAPID TRANSIT COMPANY, A CORPORATION, APPELLANT. [1]

37 P. 681

10 Utah 428

JULIAN RILEY, RESPONDENT, v. SALT LAKE RAPID TRANSIT COMPANY, A CORPORATION, APPELLANT. ^[1]

No. 509

Supreme Court of Utah

July 27, 1894

APPEAL from the District Court of the Third Judicial District. Hon Chas. S. Zane, Judge.

Action by Julian Riley against the Salt Lake Rapid Transit Company to recover damages for the death of plaintiff's minor son, caused by defendant's negligence. From a judgment for $ 5,000 entered on the verdict of the jury in favor of the plaintiff, defendant appeals. unless plaintiff remits $ 2,000 of the judgment.

Reversed.

Messrs Bennett, Marshall & Bradley, for appellant.

The estimate of non-expert witnesses of the rate of speed of moving cars is very unsatisfactory proof and should be received with great caution. Peterson, Ry. Accident Law 424-5; Hoppe v. Ry. Co., 61 Wis. 357; Ry. Co. v Huntley, 58 Mich. 539; Tully v. Ry., 134 Mass. 499. Some witnesses busy at work did not hear the gong rung. The motorman and conductor and two other disinterested witnesses heard the ring. The positive testimony is of greater weight. "The observation of the fact by some is entirely consistent with the failure of others to observe it or their forgetfulness of its occurrence." Horn's Adm'x v. Ry. Co., 6 U.S. Ap. 387; Stitt v. Huidekopers, 17 Wall. 393; Ry. Co. v. Elliott, 28 Ohio St. 340.

If a boy 7 years old has not sufficient discretion to protect himself from danger, then it was the duty of the father or his agents entrusted with the control of the child to prevent his exposure to ordinary perils, and such negligence on the part of the father precludes a recovery by him, although if the child were alive and suing, it might not be attributed to him. Tiffany on Death by Wrongful Act, §§ 69-70; Ry. Co. v. State, 30 Md. 47; Hurst v. Ry. Co., 84 Mich. 539; Ry. Co. v. Wilcox, 138 Ill. 370; Ry. Co. v. James, 81 Pa. St. 194; Williams v. Ry. Co., 60 Tex. 205. The statute, Session Laws 1892, page 46, amending § 3371, Comp. Laws 1888, which provides that nine of a jury may render a verdict, is in conflict with Article Seven of the amendments to the constitution of the United States. Webster v. Reid, 11 How. 437; Callan v. Wilson, 127 U.S. 540; Spies v. Illinois, 123 U.S. 169; Hopt v. Utah, 120 U.S. 430; Haines v. Levin, 51 Pa. St. 414; Anderson v. Caldwell, 91 Ind. 454 (46 Am. R. 616); Cooley Const. Lim. (5th ed.) 392-393; Ordronaux Const. Leg. 260-261; 41 N.H. 551; Cruger v. Ry. Co., 12 N.Y. 198; Kleinschmidt v. Dunphy, 1 Mont. 131; Copp v. Henniker, 20 Am. R. 196, (55 N.H. 179); Bradford v. Territory, 34 P. 68; State v. McClear, 11 Nev. 60; 3 Blackstone's Com. 377; 2 Hare Const. Law, 753; Miller on Const. 664; Mo. v. Lewis, 101 U.S. 22-31. "It is generally held that in order to warrant a finding that negligence * * * is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." Scheffer v. Ry. Co., 105 U.S. 252; Cooley on Torts, 69; Lewis v. Ry. Co., 54 Mich. 55, (18 Am. & Eng. Ry. Cas. 271); Bishop on Non Contract Law, § 41; 2 Wood on Railroads (2d ed.), 1438. The action of the boy, in almost literally throwing himself under the wheels of the advancing car, was a new independent cause, disconnected from the prior unlawful running of the car, intermediate between it and the accident, and self-operating in producing the injury. Henry v. Ry. Co., 76 Mo. 288; Bishop Non Contract Law, § 42; Scheffer v. Ry. Co., 105 U.S. 252. "A party has a right to a direct and positive instruction upon a point material to the issue and the evidence if requested in time; and if such request is refused, and the point involved therein is not covered by the general charge, or is left vague or indefinite, the judgment will be reversed." Selleck v. Ry. Co., 58 Mich. 195; Campbell v. Campbell, 54 Wis. 98; Sailer v. Barnousky, 60 Wis. 170; Chapman v. McCornick, 86 N.Y. 482; 2 Thompson on Trials, § 2347.

Mr. Geo. Sutherland, Mr. S. R. Thurman and Messrs. Brown & Henderson, for respondent.

The court did instruct the jury that positive evidence that the bell was rung was ordinarily of more account and greater weight than negative evidence that it was not heard, and that was all that could be said as a matter of law. Black's Proof & Plead. in Acc. Cas. pp. 67-8, 36 Cal. 513, 31 Pa. St. 358. The court was correct in charging the jury that it was to take into consideration the age of the child, his experience and intelligence, his want of care, or care in the light of such age, experience and intelligence, and that the child was only bound to use such care as a child of his age, experience and intelligence might reasonably be expected to use. 1 Shearman & Redfield on Neg. § 73, and notes; Railroad v. Stout, 17 Wall. 659; Rwy. Co. v. Gladman, 15 Wall. 401; Ranch v. Lloyd, 31 Pa. St. 358. The burden of proof was upon the defendant to establish contributory negligence unless the testimony of the plaintiff himself established it, and the question as to whether it was established or not was a question for the jury. Reddon v. Rwy. Co., 5 Utah 344; Hough v. Rwy. Co., 100 U.S. 213; Rwy. Co. v. Gladman, 15 Wall. 401. If, from the evidence, different minds might honestly arrive at different conclusions, it was a case for the jury and not for the court. 2 Thomp. Trials, §§ 1663, 1665; 2 Thomp. Neg. p. 1100, § 12; Salisbury v. Herchenroder, 106 Mass. 458; Milwaukee, etc., Ry. Co. v. Kellogg, 94 U.S. 469, 474; Hayes v. Ry. Co., 111 U.S. 241. While the authorities are conflicting, the great weight of authority is that the running of a car at a rate of speed forbidden by statute or ordinance is negligence per se if left without explanation or excuse. 2 Sher. & Red. on Neg. § 467; Pa. Co. v. Hensley, 78 Ind. 569; Keim v. Rwy. Co., 90 Mo. 314, 2 S.W. 427; Central R. R., etc., v. Smith (Ga.), 3 S.E. 397; Kyne v. Wilmington, etc. (Del.), 14 A. 922, 926; Ry. Co. v. Dunn, 78 Ill. 197, 201; Chicago, etc., Ry. Co. v. Becker, 84 Ill. 483; Correll v. Ry. Co., 38 Ia. 120, 18 Am. Rep. 22; 1 Thomp. on Neg. p. 506, § 8; Hoppe v. Ry. Co., 61 Wis. 35; Ry. Co. v. Donovon (Ala.), 36 Am. & Eng. R. R. Cases, 151.Mr. A. G. Horn and Messrs. Evans & Rogers, for appellant.

The uncontradicted proof shows that respondent has other or additional insurance, and that permission therefor was not endorsed upon the policy sued upon and for that reason he cannot recover. Van Tassel v. Ins. Co., 27 A. 641; Carpenter v. Ins. Co., 16 Pet. (U.S.) 495-511; Ins. Co. v. Heidrick, 46 N.W. 481; Hess v. Ins. Co., 11 N.Y.S. 299; Hutchinson v. Ins. Co., 21 Mo. 97; 2 May on Ins. §§ 369, 370; 34 P. 1070. Appellant had knowledge that the loss, if any, was payable to the Ogden State Bank, as its interest might appear, but this did not give it notice of the chattel mortgage which the bank held. The building also stood upon leased ground. The provisions of the policy voided it for both these reasons nor could they be waived by the agent. Hankins v. Ins. Co., 70 Wis. 1; Amer., etc., Co. v. Ins. Co., 20 N.Y.S. 646; Knowles v. Ins. Co., 21 N.Y.S. 50; McNierney v. Ins. Co., 48 Hun, 239; Hench v. Ins. Co., 122 Pa. St. 128; Ellis v. Ins. Co., 61 Ia. 577; 1 Wood on Ins. pp. 719, 720. The court permitted evidence of proof of loss made to one Tiedman, and that he was an adjuster of the company, and also that the company repudiated the entire transaction. There is no evidence that the company had knowledge that he was so acting or that it afterwards ratified his acts. It is not likely that the company would send an adjuster here after repudiating the entire transaction. Gould v. Ins. Co., 90 Mich. 302; Cleaver v. Ins. Co., 65 Mich. 527; Knudson v. Ins. Co., 75 Wis. 198; Barre v. Ins. Co., 76 Ia. 609; Wood on Ins. § 396; Hankins v. Ins. Co., 70 Wis. 1; Hollis v. Ins. Co., 65 Ia. 454; Marvin v. Ins. Co., 85 N.Y. 278-283; Savage v. Ins. Co., 52 N.Y. 502; Quinlan v. Ins. Co., 133 N.Y. 356; Lohnes v. Ins. Co., 121 Mass. 439.

If there was anything omitted from the policy, it was the duty of the insured to have the company place it thereon and not wait until he has suffered loss, and not having done so, he cannot recover. Ladd v. Ins. Co., 24 N.Y.S. 384; Warren v. Ins. Co., 19 N.Y.S. 990; Sprague v. Ins. Co., 49 Mo.App. 423; Maxon v. Ins. Co., 42 Ill.App. 164; Carey v. Ins. Co., 54 N.W. R. 18; Carey v. Ins. Co., Id. 403; Reed v. Ins. Co., 24 A. 833; Rounds v. Ins. Co., 53 N.W. R. 660; Kirkman v. Ins. Co., 57 N.W. R. 952; Ins. Co. v. Coos Co., 151 U.S. 452; Gould v. Ins. Co., supra; Cleaver v. Ins. Co., supra; Quinlan v. Ins. Co., supra; Ins. Co. v. Norman, 122 N.Y. 579; Cook v. Ins. Co., 70 Mo. 610, 27 A. 641 and cases cited. The agent cannot waive any of the conditions of the policy unless they were endorsed thereon, and not having been endorsed thereon plaintiff cannot recover. Waldman v. Ins. Co. (Ala.), 8 S. R. 666, and cases cited; Mensing v. Ins. Co., 36 Mo.App. 602; Enos v. Ins. Co., 67 Cal. 621; McIntyre v. Ins. Co., 52 Mich. 188, 194; Kyte v. Ins. Co., 144 Mass. 43; Ins. Co. v. Ice Co., 36 Md. 102; Ins. Ass'n v. Mathews, 4 S. R. 62; Carey v. Ins. Co., 54 N.W. R. 18 (Wis.); Gould v. Ins. Co., supra; Cleaver v. Ins. Co., supra; Hess v. Ins. Co., supra; Quinlan v. Ins. Co., supra; O'Brien v. Ins. Co., 134 N.Y. 28; Ins. Co. v. Fletcher, 117 U.S. 519; Ins. Co. v. Hampton, 14 S.W. R. 1092.

Mr. C. B. Pash and Mr. O. R. Leonard, for respondent.

The authorities are almost unanimous that the agent has power to waive the written provisions of a policy by a parol agreement. A written bargain is of no higher legal degree than a parol one. 2 Wood on Fire Ins. §§ 496-7, pp 894-909; May on Ins. §§ 369, 370; Kahn v. Traders' Ins. Co., 34 P. 1059; Association...