Saunders v. Southern Pac. Co.

• Decision Date: 03 April 1896
• Docket Number: 626
• Citation: 13 Utah 275,44 P. 932
• Court: Utah Supreme Court
• Parties: PHILANDER V. SAUNDERS, APPELLANT, v. SOUTHERN PACIFIC COMPANY, RESPONDENT

44 P. 932

13 Utah 275

PHILANDER V. SAUNDERS, APPELLANT, v. SOUTHERN PACIFIC COMPANY, RESPONDENT

No. 626

Supreme Court of Utah

April 3, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.

Action by Philander V Saunders against the Southern Pacific company for damages sustained by plaintiff while a passenger on defendant's train. From a judgment of nonsuit, plaintiff appeals. The facts are set out in the opinion of the court and in the opinion of Justice Miner, dissenting.

Reversed and remanded.

Evans &amp Rogers and A. G. Horn, for appellant.

The point most relied upon by respondent in the lower court was that of contributory negligence. It insisted that appellant was guilty of culpable negligence in voluntarily placing himself in an obvious and known place of danger.

We insist that under the circumstances of the case the overwhelming weight of authority is opposed to this view. In what was he negligent? He was properly performing the work for which his presence was designed in the ordinary and customary manner. His work called him to the place where he received the injury. He was there not by choice, but by the necessities of the occasion, made so by the misconduct of respondent. He was a passenger, in one sense, having the privilege and freedom of the train in the manner in which he was using it. It was necessary to do his work while the train was in motion. It was of such a character that it did not require him to remain in the stock car and expose himself to the severity of the weather and odor of the sheep. His attention was engaged in keeping his balance on the cars. No warning was given of the approaching danger. How, then, can it be said, as a matter of law, that the jury should not pass upon the question of contributory negligence. Authorities are almost without number, that the case presents one for the consideration of the jury. Carpenter v. Ry., 56 F 451; Thomas v. Ry., 60 F. 379; Lawson v. Ry., 64 Wis. 447; White v. Ry., 67 F. 481; Horst v. Ry., 93 U.S. 291; Tibby v. Ry., 82 Mo. 292; Johnson v. Ry., 116 Ill. 206; Rowan v. Ry., 3 N.E. 627; Irwin v. Ry., 16 P. 146; Flanders v. Ry., 53 N.W. R. 544; Kane v. Ry., 128 U.S. 91-96; Wright v. Ry., 17 N.E. 584; Hutchinson on Carriers, Sec. 654, A; Wallace v. Ry., 138 N.Y. 302; Waterbury v. Ry., 17 F. 671.

Contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. Grand Trunk Ry. v. Ives, 144 U.S. 408; Smith v. Rio Grande Ry., 9 Utah 141; Wood v. Ry., 9 Utah 146; Wines v. Ry., 9 Utah 228; Olsen v. Ry., 9 Utah 129; Everett v. Ry., 9 Utah 340; 1 Sherman & Redfield on Neg. 99.

Marshall & Royle, for respondent.

The passenger is bound to conduct himself while upon the train in a prudent manner, and if he unnecessarily or negligently exposes himself to danger, and as a consequence is injured, he cannot recover redress from the company, although it was also negligent, because in such case the fault is mutual. Brennan v. R. R. Co., 45 Conn. 284; Willis v. Long Island R. R. Co., 34 N.Y. 670; Hickey v. Boston, etc., R. R. Co., 14 A. 427; Wood's Ry. Law, vol. 2, p. 1083 and cases cited; Patterson's Ry. Accident, p. 282; Penn. R. R. Co. v. Langdon, 92 Penn. St. 21; Goodwin v. R. R. Co., 84 Maine 203.

The fact that a passenger did not know that his act was careless will not avail him, as he was bound to know. Penn. R. R. v. Henderson, 43 Penn. State 449; Southern R. R. Co. v. Kendrick, 40 Miss. 374; O'Donnell v. R. R. Co., 59 Penn. State 239.

Passengers passing from car to car unnecessarily, do so at their own risk, and are bound to know that it is dangerous to do so. McIntyre v. N.Y. Central, 34 N.Y. 287.

If the facts are undisputed, and fail to show that the plaintiff was in the exercise of due and reasonable care at the time of the accident, it is the duty of the court to instruct the jury that he cannot recover. Gavett v. R. R. Co., 16 Gray (Mass.) 501.

It is contributory negligence in a passenger to put his head or arm out of the window of a car in motion. Todd v. R. R., 3 Allen 18; R. R. v. McClurg, 56 Penn. St. 294; Holbrook v. R. R., 12 N.Y. 236.

It is contributory negligence for a passenger to ride in a baggage car or other car not intended for the carriage of passengers, provided it was a contributory cause of the accident, and was of itself so dangerous a place that a man of ordinary prudence would not have voluntarily occupied it under ordinary circumstances. Patterson Ry. Accident, 285.

Even if defendant was negligent, yet if plaintiff's negligent or imprudent act or conduct contributed to his injuries, he cannot recover. R. R. v. Letcher, 12 E. & A. 115; R. R. v. Aspell, 23 Penn. St. 147.

The case of Indianapolis, etc., R. R. Co. v. Horst, 93 U.S. 291, is referred to as in favor of plaintiff. This case is clearly distinguished in Wood's Ry. Law, vol. 2, p. 1121, 93 U.S. 291.

If danger is obvious and such as a reasonable man would not have incurred, the passenger must not assume the risk. Hazard v. Chicago, etc., R. R., 1 Bissell 503; Pittsburgh v. Krause, 30 Oh. St. 220; Chicago, etc., R. R. v. Randolph, 53 Ill. 510; Jefferson, etc., R. R. v. Swift, 26 Ind. 549.

Defendant does not contend in this case, that, as between the defendant as a railroad carrier and a passenger being carried by it, it could contract to be absolved from liability. The point made on the trial below in this connection was, that Thomas Nelson, this defendant, and plaintiff all being present, and to be present during the transportation, and action therein, agreed between themselves that Thomas Nelson alone should be responsible to plaintiff for any damage he might sustain. The plaintiff agreed to this. We wish simply to submit to the court whether or not this contract between these three persons could not be made, and as between them be legal and binding. But we will say that this point was not embraced or relied upon in defendant's motion for new suit. (See deft's abstract, page 9.)

We submit this case to the court with the suggestion, that if plaintiff is right in the contention, then, not only must bridges and snow sheds be built or rebuilt to accommodate travel over the tops of the cars but the tops of the cars would have to be protected by safe guards for persons walking thereon, proper platforms kept in good condition and railings to guard the same, with additional and safe appliances for persons ascending to and descending from the tops of the cars, while the speed of trains would have to be regulated to insure the safety of persons passing over the top, whenever they should pass thereon, and trains slowed up at sudden turns in the road, or the road made straight.

BARTCH, J. ZANE, C. J., concurs. MINER, J., dissenting.

OPINION

BARTCH, J.:

The plaintiff brought this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. At the trial of the cause, when the plaintiff rested his case, he was nonsuited, and thereafter a motion for a new trial was refused. Thereupon he appealed to this court, claiming that the trial court erred in granting the motion for a nonsuit and dismissed the action, and in overruling and denying his motion for a new trial. The facts disclosed by the plaintiff's testimony and admitted by the pleadings, are substantially as follows: The defendant, at the time the plaintiff received the injury complained of, operated a railroad between Ogden, Utah, and San Francisco, Cal. On the 21st day of January, 1892, at Iron Point, in Nevada, the defendant entered into a contract with one Thomas Nelson for the transportation of 11 cars of sheep over its railroad to San Francisco. The contract provided free passage on the stock train for the plaintiff, who was an attendant to care for the sheep, and that the defendant, by reason of such free passage, would not be liable for any negligence upon its part by which the plaintiff might be injured. Under this contract, Thomas and Charles Nelson, the owners, loaded the sheep into cars furnished by the company. Each car had doors, through which the attendants could pass, at either end, and at the rear of the cars for the sheep there was attached a caboose for the use of the attendants and trainmen; and these cars and caboose remained so connected for two days, until they arrived at Truckee. There the servants of the defendant, with the knowledge of the conductor of the train, although expressly objected to by the plaintiff and Nelson, switched three refrigerator cars into the train, between the caboose and sheep cars. These cars so placed in the train had no doors at the end, and were a foot to 18 inches higher than the cars containing the sheep, and had a running board on top. When sheep are being shipped in cars, they are liable to get killed by crowding onto each other and trampling each other down. To prevent this, it is the duty of the attendants to pass through the train and help them up. Before the train started from Truckee, the plaintiff, Nelson, and one Scott went forward through the cars, as was the custom, to lift up the sheep which had fallen down, and it pulled out while the men were thus engaged. Switching of the train prevented them from attending the sheep before starting. The train had not proceeded far to the westward, when, their work having been completed, the plaintiff and Nelson got upon the top of the cars to return to the caboose, because they could not pass through the refrigerator cars. Thus returning, with their backs towards the engine, and having reached the refrigerator cars next to the caboose,...