Silcock v. Rio Grande Western Railway Co.

• Decision Date: 16 June 1900
• Citation: 61 P. 565,22 Utah 179
• Court: Utah Supreme Court
• Parties: ALMA D. SILCOCK, APPELLANT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT

61 P. 565

22 Utah 179

ALMA D. SILCOCK, APPELLANT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, RESPONDENT

Supreme Court of Utah

June 16, 1900

Appeal from Third District Court, Salt Lake County. Hon. A. N Cherry, Judge.

Action to recover damages for personal injuries and for injury to personal property claimed to have been occasioned through the negligence of the defendant company. From a judgment of non-suit entered at the close of plaintiff's testimony defendant appealed.

Judgment affirmed.

Daniel Harrington, Esq., and G. M. Sullivan, Esq., for appellant.

It was a duty defendant owed to this plaintiff, and a duty that all railroad companies in this State owe to their patrons lawfully upon or near their right of way in the transaction of business, to give warning of the approach of their trains, by the ringing of a bell or the sounding of a whistle. Olson v. O. S. L., and U. N. R'ys., 9 Utah, 129, 33 P. 623; U. P. Ry. Co. v. Rassmussen, (Nebraska), 41 N.W. 778; Chicago B. &. Q. R. R. Co. v. Metcalf, 63 N.W. 51; Lonergren v. Railroad Company, (Iowa), 49 N.W. 832; Ranson v. Railroad Co., (62 Wis. 178, 22 N.W. 147); People v. New York Central Railroad Company, (25 Barb. 199).

"In an action against a railroad company to recover for injuries caused by the negligence of its servants the determination of the fact whether the person injured was guilty of contributory negligence is a question of fact for the jury." Grand Trunk Railway Company v. Ives, 144 U.S. 408.

Does the plaintiff's testimony show such negligence on his part in the care and management of his team as to contribute proximately to, or become the proximate cause of the injury? Railroad Co. v. Stout, 17 Wallace, 657; Davis v. Utah Southern Ry. Co., 3 Utah, 218, 2 P. 521; Grand Trunk Railway Co. v. Ives, 144 U.S. 408; Wines v. Rio Grande Western Railway Co. 9 Utah, 232-33 P. 1042; Dederichs v. Salt Lake City Railway Co., 44 P. 649; Linden v. Anchor Mining Co., 58 P. 355; Hall v. Ogden City St. Ry. Co., (Utah) 44 P. 1046.

The law imposes upon him, who has the last opportunity of avoiding an accident, the burden of doing so. And he who fails to do, and act, upon such final opportunity, as the average prudent man would do, is negligent. This last negligence contributing to, or causing an injury, becomes and is the proximate cause of same. Atwood v. Bangor O. & O. T. Ry. Co., (Maine) 40 A. 67.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott, for respondent.

It is not negligence for a railroad company to run its trains at a high rate of speed, and negligence cannot be inferred from speed alone. In this case there is no evidence that the surroundings were such at the point in question that the company should run slow or should run at any rate less than a very rapid one; and if it is not proper for the company to run its trains rapidly at this point, then it was incumbent on the appellant to show the contrary. Warner v. N.Y., etc., Ry. Co., 44 N.Y. 465-6; Omaha, etc., Ry. Co. v. Talbot, 67 N.W. 599.

The appellant was not excused for leaving his team within twenty or thirty feet of the railway track with simply the brake on and the lines fastened to the wagon because the bell may not have been rung, or the whistle sounded, or the train late. Salter v. Utica, etc., Co., 75 N.Y. 281-2; Cin., etc., Ry. Co. v. Howard, 24 N.E. 892; Ry. Co. v. Houston, 95 U.S. 701-2; Schofield v. Chicago, etc., Ry. Co., 114 U.S. 617; Pepper v. Sou. Pac. Co., 105 Cal. 400; Omaha, etc., R. Co., v. Talbot, 67 N.W. 599.

The evidence shows that appellant was not crossing, or attempting to cross, the railway track in question at the time, but he left his team untied in the road, except as before mentioned, within twenty or thirty feet of the track, and went off to the station and then east about sixty feet to the coal shed. Under these circumstances the plaintiff cannot invoke the aid of the statute requiring the sounding of the whistle or the ringing of the bell, as these precautions are for the benefit of persons crossing the track at the highway, and cannot be invoked by other parties. The authorities to this effect are decisive and practically unanimous. 13 A. & E. Ry. Cas. 632 (Kan.), and note 635.

In 11 S.E. 636 (S. Car.), Neely v. Char. etc., Ry. Co., it is said that the object of these sections was to prevent collisions between persons attempting to cross the track and trains, and it was not intended to apply to others. Hale v. Col., etc., Ry. Co., 13 S.E. 537 (S. Car.); Louis, etc., Ry. Co. v. Hall, 24 A. S. R. 863 (Ala.); Williams v. C., etc., Ry. Co., 135 Ill. 492; Randall v. Baltimore, etc., Ry. Co., 109 U.S. 485; Burger v. Mo., etc., Ry. Co., 34 A. S. R. 379 (Mo.); Stahl v. Lake Shore, etc., Ry. Co., 75 N.W. 630 (Mich.); Harty v. Central, etc., Ry. Co., 42 N.Y. 468.

There was no negligence because the train was late, as heretofore shown. The signals provided by the statute were not for the benefit of the appellant, and the injury did not result from any of the matters specified in the complaint, but resulted from the team being frightened after plaintiff was in the wagon and hold of the lines, as then he did not or could not control them. Under these circumstances a non-suit was justified. Linden v. Anchor Min. Co., 58 P. 358, (Utah); Randall v. Baltimore, etc., Ry. Co., 109 U.S. 482; Brady v. Chicago, etc., Ry. Co., 80 N.W. 809.

Appellant, as a man of ordinary reason and prudence, knew that a team should not be left under such circumstances, and if he intended to leave the team alone he should then have looked and listened for the train before going to the depot, and afterwards every few moments have done likewise, but all this he omitted; had he used even this little care, there is nothing to show that the accident would have happened; on the contrary, if he had tied his team to the fence, or have kept watch, the accident in all probability would not have happened. Clark v. C. S. L. Ry. Co., 59 P. 92; Bunnell v. R. G. W. Ry. Co., 44 P. 927; Shaefert v. Chicago, etc., Ry. Co., 17 N.W. 893; Pepper v. Sou. Pac. Co., 105 Cal. 397-400; R. R. Co. v. Houston, 95 U.S. 701; Salter v. Utica etc., Ry. Co., 75 N.Y. 281-2; Schofield v. Chicago, etc., Ry. Co., 114 U.S. 615.

BARTCH, C. J. MINER, J. and BASKIN, J., concur.

OPINION

BARTCH, C. J.

This action was brought to recover damages for injury to personal property, and for personal injuries, claimed to have been occasioned through the negligence of the defendant. It was, among other things, alleged in the complainant that the defendant, in disregard of its duty, failed to announce the arrival of its train, and carelessly, unlawfully and negligently ran and managed a locomotive and train belonging to it, on its track, crossing a public highway, and "that the same ran against and partially over said property," killing a span of mares, and injuring other personal property and the plaintiff.

The defendant, in its answer, denied negligence on its part and charged that the plaintiff was guilty of negligence which caused the injuries of which he complains.

From the testimony of the plaintiff, it appears that, on January 29, 1898, he went with his team to defendant's railway station to purchase coal. When he arrived there he stopped his team at a point on the public road "twenty to thirty feet" from the railway track, facing the same. He then applied the brake and tied the lines to his wagon, and went to the depot on the north side of the highway to arrange with the agent for coal. The agent not being there he stepped west across the track about sixty feet to the coal bins to ascertain if there was any coal to be had. While there he heard the rumbling of the incoming train, which was then close to the station, and hastened back to his team, got into the wagon and hold of the lines when his horses became frightened and unmanageable and collided with the train. The injuries resulted from the collision.

The whistle on the engine was not blown nor the bell rung until immediately at the crossing. It was the northbound passenger train called the "Flyer," running at a rate of fifty to sixty miles an hour. That train, according to plaintiff's testimony, generally passed there somewhere "about a quarter to twelve," but on this occasion it arrived about "half past twelve or a quarter to one." The plaintiff had not noticed it come, but supposed it had gone. He testified that this particular train generally went through there rapidly--rapidly enough to probably frighten his team. He also testified that, on a previous occasion, with a load of beets, he stopped at the same place while the train was passing, sat in the wagon and held the team.

Such are substantially the material facts shown by the plaintiff's testimony. After he rested his case, the defendant made a motion for a non-suit, upon the grounds that no negligence on the part of the defendant was shown, and that the evidence shows that the plaintiff was guilty of negligence which contributed proximately to the injury. The motion was sustained, and the plaintiff appealed.

The decisive question presented is: Was the appellant guilty of such contributory negligence as prevents his recovery? That is, assuming that the respondent was negligent in not sounding the whistle or ringing the bell at a proper distance from the public crossing, was the appellant guilty, as shown by his own evidence, of negligence, which contributed proximately and materially to the accident, so that, as matter of law, he cannot be permitted to recover?

Due consideration of the facts and circumstances, appearing in evidence, impels the conclusion that this question must be answered in the affirmative. The proof leaves no room for doubt that if the appellant had proceeded with ordinary care, about...