Rogers v. Rio Grande Western Ry. Co.

• Decision Date: 12 July 1907
• Court: Utah Supreme Court
• Parties: ROGERS et al v. RIO GRANDE WESTERN RY. CO

90 P. 1075

32 Utah 367

ROGERS et al v. RIO GRANDE WESTERN RY. CO

Supreme Court of Utah

July 12, 1907

APPEAL from District Court. Third District; M. L. Ritchie, Judge.

Action by C. D. Rogers and another against the Rio Grande Western Railway Company. From a judgment for defendant, plaintiffs appeal.

AFFIRMED.

W. R White and Powers & Marioneaux, for appellants.

Van Cott and Allison & Riter for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The plaintiffs (appellants here) and parents of one Lawrence E. Rogers, brought this action against the defendant (respondent in this court) to recover damages alleged to have been sustained by appellants by reason of the death of their son Lawrence, alleged to have been caused through the negligence of respondent. The facts, briefly stated, are as follows: On May 29, 1905, at about 4 o'clock a. m., while driving on a public highway, and in crossing, or attempting to cross, the railroad track of respondent with his horse and buggy, Lawrence E. Rogers was struck by a freight train and killed. The crossing was in the open country, outside of the limits of any town or village. There were no eye witnesses, except the engineer and fireman on the engine of the freight train, and they testified that they saw him just before or about the time of the collision. The direct cause of the accident was left a matter of inference from the evidence. Rogers was on his way home from a farmhouse about nine miles distant from his own home and about five miles westerly from the crossing in question, at which place he had spent the night with a young lady, who, the evidence discloses, was his fiancee. He had worked all the day before the accident, and had driven over to the young lady's home after dark the evening preceding. The morning was somewhat cloudy, and the accident occurred just a little before or at the break of day. The testimony with respect to the speed of the train, the sounding of the whistle, and the ringing of the bell at and before the crossing was reached by the train, was conflicting; appellants' witnesses testifying that the statutory signals were not heard by them, and respondent's witnesses testifying that they were given. The same conflict exists as regards the speed of the train; appellants' witnesses contending that the train ran forty or forty-five miles an hour, while respondent's witnesses gave the speed as thirty miles an hour. The evidence further disclosed without conflict that the headlight on the engine was burning; that Rogers could have seen the train a mile or more as it approached the crossing when he was at a point 285 feet from the track, and could do so continuously until he reached the crossing; that he drove a gentle horse, and was riding in a top buggy. Upon substantially the foregoing facts with regard to the accident, the court submitted the case to a jury, who returned a verdict for the respondent, upon which the court rendered judgment. The errors alleged, with one or two exceptions, relate to the instructions, and such as are argued in the brief we will now consider.

The first alleged error relates to the giving of instruction No. 14, which is as follows: "If you believe that the decedent was killed by the defendant railway company, and that such company did not give any signal for the crossing where the decedent was killed, and if you further believe from the evidence that there is no other evidence in the case which shows how the decedent met his death, then you are charged that the plaintiffs have not established that the proximate cause of the decedent's death was the alleged failure of the defendant to give crossing signals, and in that event your verdict should be for the defendant." As we understand counsel's argument, they contend that the vice of the instruction consists in telling the jury that the mere failure to sound the whistle or ring the bell, standing alone, was not sufficient to authorize a recovery. Counsel argue that the failure to give the statutory signals constitutes negligence per se, and therefore respondent's negligence was established, and this being so, the necessary proof entitling appellants to recover existed and could be defeated only by proof of contributory negligence. It may be conceded that the failure to comply with the statute with regard to warning signals generally constitutes negligence per se, as was held by this court in Smith v. Min. & S. S. Co. (Utah), 88 P. 683, but proof of negligence without more, however, is not enough. In addition to this the party upon whom rests the burden of proof must show by some competent evidence that the negligence proved was the proximate cause of the injury complained of, or, where there is more than one cause, that it at least was one of the causes. A prima facie case is not established until this is done, and hence the existence or nonexistence of contributory negligence, under such circumstances, is immaterial. Contributory negligence, if established, prevents a recovery, although otherwise a complete prima facie right to recover is shown. The instruction did no more than to tell the jury that, although respondent may have been guilty of negligence, unless it appeared from the evidence that such negligence was the proximate cause of the injury, a recovery was not authorized upon proof of negligence alone. The instruction, therefore, is not open to the criticism made by counsel, which is clearly demonstrated by the following authorities: 1 Thompson on Negligence, section 45; 8 A. & E. Enc. Law (2d Ed.), 416; Byrd v. Express Co., 51 S.E. 851, 139 N.C. 273; Kearns v. Southern Ry. Co., 52 S.E. 131, 139 N.C. 470; 44 A. & E. Ry. Cases 484.

It is further contended that the court erred in giving instruction No. 15, which is as follows: "The presumption that the decedent used due care in approaching the crossing in question in order to avoid injury is entirely destroyed where it appears from the evidence that if he had looked and listened before driving upon the crossing in question he must have seen or heard the train approaching." It is urged that the court, by this instruction, invaded the province of the jury; that it is misleading; and that it is not a correct statement of the law. In order to give the instruction its proper effect, it must be construed in connection with other instructions given, and especially in connection with paragraph 10 of the instructions. In that paragraph the court lays down the correct rule applicable to contributory negligence in attempting to cross railroad tracks, and in that regard tells the jury that, as matter of law, every person is presumed to be in the exercise of due care for his own safety. Instruction No. 15, therefore, in its effect, was no more than a statement that the presumption of the exercise of due care could not prevail if it was made to appear from the evidence that due care had not been exercised. In other words, in the absence of all evidence that presumption prevailed, but that it could not prevail against evidence showing a want of proper care. If instruction No. 15 had been made a part of instruction No. 10, of which, in its effect, it is a part, we think no one would seriously contend that it is subject to criticism as a statement of the law upon the subject of presumptions. Moreover there was some evidence respecting deceased's...