Ryan v. Union Pac. R. Co.

• Citation: 46 Utah 530,151 P. 71
• Decision Date: 30 July 1915
• Docket Number: 2713
• Court: Utah Supreme Court
• Parties: RYAN v. UNION PAC. R. CO

151 P. 71

46 Utah 530

RYAN v. UNION PAC. R. CO

No. 2713

Supreme Court of Utah

July 30, 1915

Appeal from District Court, Second District; Hon. N. J. Harris Judge.

Action by T. D. Ryan, as administrator of the estate of Kantara Yoshitake, deceased, against the Union Pacific Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED and REMANDED.

P. L Williams and Geo. H. Smith, and C. R. Hollingsworth, for appellant.

APPELLANT'S POINTS.

The deceased was under the duty of attentively looking and listening before he went upon the tracks in question, to discover whether or not a train was approaching from either direction, and if by so doing he could have discovered that one was approaching, as in fact it was, his conduct demonstrates either that he did not look at all, or if he did look, he did not heed what he saw or what was to be seen. (Burges v. Salt Lake City Ry. Co., 17 Utah 406; Johnson v. R. G. W. Ry., 19 Utah 77; Silcock v Rio Grande, 22 Utah 179; Rogers v. R. G. W., 32 Utah 267; Teakle v. San Pedro, etc., 32 Utah 276; Wilkinson v. O. S. L. R. R., 35 Utah 110; Pratt v. U. L. & Ry. Co., 38 Utah 500; Bates v. S. P., L. A. & S. L. R. R., 38 Utah 568; Oswald v. U. L. & Ry. Co., 39 Utah 245.)

In Jensen v. D. & R. G., Supreme Court of Utah, decided January 30, 1914, 44 Utah 100, 138 P. 1185, this court specifically held in discussing the last chance doctrine that it did not apply and could not be invoked in a case where the negligence of the plaintiff or deceased was contemporaneous and concurring with the defendant's negligence. (34 L. R. A. (N. S.) 957, and monographic note; 55 L. R. A., 418, and monographic note; Dyerson v. R. R. Co., 87 P. 680, 7 L. R. A. (N. S.) 132; Kirtley v. C. M. & St. P. Ry. Co., 65 F. 386; Railroad Co. v. Bailey, 27 L. R. A. (N. S.) 379 (Va.); Wilson v. Railway Co., 129 N.W. 340 (Iowa) ; Bruggeman v. Railroad Co., 147 Iowa 187; 123 N.W. 1007; A. T. & S. F. v. Taylor, 196 F. 878.)

J. G. Willis for respondent.

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

OPINION

STRAUP, C. J.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused through the negligence of the defendant. The plaintiff had judgment, from which the defendant appeals.

One of the assignments presents the ruling refusing the defendant's motion for a direction of the verdict. The deceased was in the employ of a cement company at Devil's Slide. There he was run over by a train of cars operated by the defendant and killed. The charged negligence is failure to give warnings of the train's approach and to observe a lookout. The motion was based on alleged grounds that the deceased was negligent and that his, and not the defendant's, negligence was the proximate cause of the collision. At Devil's Slide the defendant's main line runs in an easterly and westerly direction. About one-fourth of a mile north of the main line is the cement company's plant and premises. From the main line is a spur or branch track about 3,000 feet long, running as it leaves the main line for a short distance somewhat parallel with it, and then, with a pronounced curve, northerly upgrade to and beyond the plant. When it reaches the plant the spur branches into two parallel tracks close together, and so continues to the northern limits of the plant and premises. Thence on, there is again but one track. The two tracks thus running through the cement company's premises are so close together that, as expressed by one of the witnesses, there is just room enough for the passing of cars; another, that the distance from the center of one of the tracks to the center of the other is about thirteen feet. There are buildings of the cement company on both sides of the tracks, consisting of an office or laboratory building, a power house, cement plant, storage and ware houses, crushers, bins, kilns, and other buildings. These buildings, except the office building are within three or four feet of the track. This double track thus runs between the buildings for a distance of about 600 feet. The space between the buildings, and in which the tracks are laid, is spoken of by the witnesses as a sort of an alley, the width of which, from building to building, is about twenty-four feet. The tracks are used to run empty cars to the plant and to take out loaded cars. Devil's Slide is a little town to the west and north of the junction of the main line and the spur line. Croyden is a little settlement north of the plant, and is at the terminus of the spur or branch track. There were about 150 men at work at the plant. They, and others, passed up and down and across the tracks at all hours of the day, as one of the trainmen put it, "every few minutes there would be some one cross there." Cars were run from the main line and pushed up to the plant, and loaded cars taken down every day, generally between seven and eleven o'clock in the morning. During the forenoon of the day of the accident the deceased was at work in the basement of the cement company's office, making concrete brick or blocks. That was at or near the south junction of the double tracks running through the alley or at the southern portion of the cement company's plant and premises. The distance from there south and west, along the spur track to the main line, is about 1,500 feet. The deceased was run over and killed in the alley along the double track about 400 feet north of the office building, some of the witnesses stating between ten and eleven o'clock, others, shortly before noon. No one saw him leave the office building. He was first seen walking slowly north along the two tracks in the alley within about forty or fifty feet from the place where he was struck by the train and killed. The track to the right of him was occupied by box cars. The track to the left of him then was clear. The defendant at that time was shoving or backing a train of twenty-one cars along the spur track up towards the cement plant and premises and in the direction the deceased was walking, intending to leave eleven empty cars on the track to the left of him. The cars were forty feet in length. The engine shoving the train thus was about 840 feet from the forward car. Because of the curve and length of the train the engineer's view in advance of the forward car was obstructed. There was no one on the forward car as the train approached, nor on any of the cars, except the fireman and engineer on the engine. No whistle was sounded or other warning signals given of the train's approach. Before that, and some time before the deceased entered the track and walked up the alley, some switching of cars had been done on the premises of the cement company, cars taken from one track and drawn down and placed on the other. One of the witnesses for the plaintiff testified that when he first saw the deceased walking along the track the train was approaching him about 100 or 150 feet away, moving at about ten miles an hour in the direction the deceased was walking, and that the deceased walked about forty or fifty feet on the track on which the train was moving before he was struck. Another witness for the plaintiff testified that when he first saw the deceased the train was about fifty feet from him; that the deceased then was walking between the two tracks, and, coming to a wet or muddy place, stepped on the track on which the train was moving, and there walked twenty or thirty feet before he was struck. Both witnesses testified that the deceased was looking in the direction he was walking, and that during the time they saw him he did not look back in the direction the train was approaching, and did not look in that direction when he stepped from between the tracks and on the track where he was struck. These witnesses endeavored to attract his attention by hallooing and shouting, but were unable to make him hear because of much noise occasioned by operations of the crushers and machinery at the plant. As the train approached the southern portion of the cement company's premises, the conductor of the train stood in front of the office building near the south junction of the two tracks and on the east side of them. On the other side stood a brakeman in readiness to cut loose from the train the eleven cars when they had been shoved up the required distance. These witnesses testified that when the forward car reached them they glanced up the track or alley, and that they then saw no one. After the forward car had passed them their view up the track was obstructed by the cars. The forward car struck the deceased just at the place where the eleven cars were intended to be placed and cut loose from the train, The deceased was instantly killed. The forward truck of the car striking him was derailed by the impact, and the derailed car jammed against a car standing on the track. The train crew had no knowledge that the deceased had been struck until one of the witnesses who testified for the plaintiff ran down and notified them.

We thus have a case where there is ample evidence to justify findings that both parties were negligent. That is not disputed. The defendant, however, urges that the question of its negligence was one of fact, and that of the deceased's was one of law, especially as to whether the deceased's or the defendant's negligence was the proximate cause. If the defendant was negligent--and there is ample evidence to show that it was--then its negligence was a direct cause. There can be no doubt of that. The serious question concerns the deceased's negligence, whether it was for the jury or the court. Independent of evidence, the presumption should be indulged that the deceased exercised due care and did all that reasonably was required of him. No one saw him leave...