Robinson v. Oregon S.L. & U.N. Ry. Co.

• Decision Date: 12 September 1891
• Citation: 27 P. 689,7 Utah 493
• Court: Utah Supreme Court
• Parties: JOHN ROBINSON, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

27 P. 689

7 Utah 493

JOHN ROBINSON, RESPONDENT, v. OREGON SHORT LINE AND UTAH NORTHERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

September 12, 1891

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial.

The ruling in the lower court against a non-suit was placed upon the ground that there was evidence to show that the car had been left unfastened upon the track, and if so, it was negligence to leave the car in such a position. The opinion does not notice this aspect of the testimony. Other facts are found in the opinion.

Reversed and remanded.

Messrs Williams and Van Cott, for the appellant.

Messrs Sutherland and Judd, for the respondent.

ANDERSON J. BLACKBURN, J., and MINER, J., concurred.

OPINION

ANDERSON, J.:

This action is brought by the plaintiff to recover damages for the death of his son, aged between eleven and twelve years, alleged to have been caused by the negligence of the defendant. There was a verdict and judgment in favor of the plaintiff for $ 4,000, and the defendant brings this appeal from the judgment, and from the order of the court overruling a motion for a new trial.

The complaint alleged that on October 11, 1890, the defendant left a hand-car upon one of the tracks of its road within the limits of Salt Lake City, and permitted it to remain there until the evening of October 12, without being in any way guarded or locked, and that on the last named date plaintiff's son was attracted to the hand-car, and got on the same with other boys, and while riding down a grade lost his balance, and fell from the car and was killed. The answer of the defendant denied each and every allegation of the complaint.

The evidence showed that the defendant was constructing yards and side tracks near the north limits of Salt Lake City. That on Saturday, October 11, 1890, there was a set of hands at work there, and that about noon of that day they quit work, and started back to the city on a hand-car, that on account of snow having fallen on the rails, and an ascending grade, they were unable to propel the car; that they set the car off the track, left it unlocked, and came back to the city on foot that the car weighed between six and seven hundred pounds and required four men to lift it from the track; that at the point where they put the hand-car off the track the track is four or five feet above the level of the ground, and they placed it so that the edge of the car would be about six feet from the rail; that the place where they left the car is about a mile from the thickly settled portions of the city, and that there are no houses nearer than a quarter of a mile, and that the ground is swampy and wet, and is not used nor suitable for a play ground for children; that either that afternoon or on Sunday morning some boys placed the car back on the track. On Sunday forenoon a number of boys were playing with the hand-car by running around on the side tracks or switches, and about three o'clock in the afternoon they were joined by plaintiff's son and other boys, when they pushed the car up an ascending grade, and all got on, and started down the grade, and when a high rate of speed had been attained the son of plaintiff either jumped or fell off in front of the car, and was run over and...