Smalley v. Rio Grande Western Ry. Co.

Citation98 P. 311,34 Utah 423
Decision Date07 November 1908
Docket Number1916
CourtSupreme Court of Utah
PartiesSMALLEY v. RIO GRANDE WESTERN RY. CO

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by Albert Smalley, an infant, by John Smalley, his guardian ad litem, against the Rio Grande Western Railway Company. From a judgment for defendant, plaintiff appeals.

AFFIRMED.

Agee Chez & McCracken for appellant.

APPELLANT'S POINTS.

By the overwhelming weight of modern authority any negligence on the part of the parents of appellent or Mrs. Lowe, in whose charge he was at the time of his injury, if proven, is not imputable to appellant, and therefore it was error for the court to overrule appellant's objection to questions asked the witness Smalley on cross-examination, which were immaterial for any purpose except to make it appear to the jury that the parents of appellant had been negligent. The doctrine of Thoroughgood v. Bryan, 8 C. B. 115, the leading case in England, announcing the doctrine of imputed negligence has been generally denied in this country and entirely overthrown and repudiated in England. (See note to Schultz v. Railway Co., 8 L. R. A. [N. S.] 587 et seq.; Miller v. Railroad, 128 Ind. 97, 27 N.E. 339; Nisbet v. Garner, 75 Ia. 314, 39 N.W. 516; Whitman v. Fisher, 98 Me. 577, 57 A. 895; Railroad v. Dougherty, 209 Ill. 241, 70 N.E. 586; Mattson v. Railroad [Minn.], 104 N.W. 443; Railroad v. Calhoun [Okla.], 89 P. 207; Schindler v. Railway, 87 Mich. 400, 49 N.W. 670; Huff v. Ames, 16 Neb. 139, 19 N.W. 623; Kowolski v. Railroad, 84 F. 566, 43 C. C. A. 1; Railroad v Schuster, 113 Pa. 412, 6 A. 269; Roth v. Union Depot Co. [Wash.], 43 P. 641; Railway v. Wilcox, 138 Ill. 370, 27 N.E. 899; Boehm v. Detroit [Mich.], 104 N.W. 626; Gunn v. Railroad, 42 W.Va. 676, 26 S.E 546; Railroad v. Lapsley, 2 C. C. 149.)

The amendment would merely have made the complaint conform more specifically to the facts proven by evidence admitted without objection, and which was undisputed and came from respondent's own witness. Such an amendment was in furtherance of justice and should have been permitted. (Walton v. Jones, 7 Utah 462; Jones v. Ogden City [Utah], 89 P. 1006; Minneapolis, etc Co. v. Currey [Kan.], 89 P. 688; Hobbs v. Ray, 29 Ky. L. Rep. 999, 96 S.W. 589; Mining Co. v. Mining Co., 29 Utah 490.)

Since the trial, in the case of Brown v. Salt Lake City, not yet reported, this court has announced its approval of the doctrine of the turntable cases, and that this doctrine is applicable to "structures and things other than machinery when such structures and things are in themselves dangerous and alluring or attractive to children of immature judgment and discretion, and if, therefore, the owner places something upon his premises which is easily accessible to children, and which is alluring or attractive to their childish propensities and excites their curiosity and desire to play, it, in effect, amounts to an implied invitation to them to come upon the premises." (Pekin v. McMahon, 154 Ill. 141, 29 N.E. 484, and Price v. Water Co. 58 Kan. 551, 50 P. 450; Penso v. McCormick [Ind.], 25 N.E. 156, 9 L. R. A. 313; Powers v. Harlow, 53 Mich. 514, 19 N.W. 257; Kopplekum v. Pipe Co. [Colo.], 64 P. 1047; Tramway Co. v. Nicholas [Colo.], 84 P. 813; Birge v. Gardner, 19 Conn. 507; Branson v. Labrot, 81 Ky. 638, 50 Am. Rep. 193; Brinkley, etc., Co. v. Cooper [Ark.], 31 S.W. 154; Biggs v. Barbwire Co. [Kan.], 50 P. 4, 44 L. R. A. 655; O'Leary v. Telephone Co. [Mich.], 109 N.W. 434.)

If appellant had been injured while attempting to cross the track, or even while playing on or lying asleep on the track, by a car being switched down the track unaccompanied and uncontrolled and without any precautions being taken to ascertain if any child was on or about the track in a place of danger, it would hardly be contended that respondent was not liable, in view of the many decisions holding railroad companies liable under such circumstances. (Hyde v. Railroad, 7 Utah 356; Young v. Clark, 16 Utah 42, 50 P. 832; Corbett v. Railroad, 25 Utah 449; Gunn v. Railroad, 42 W.Va. 676, 36 L. R. A. 575; Lange v. Railroad [Mo.], 91 S.W. 989; Eppstein v. Railroad [Mo.], 94 S.W. 967; Roth v. Union Depot Co. [Wash.], 43 P. 641; Shelby's Admr. v. Railway [Ky.], 3 S.W. 157.)

Sutherland, Van Cott, Allison & Riter for appellee.

RESPONDENT'S POINTS.

The admission of evidence tending to show negligence on the part of appellant's parents was wholly immaterial, and harmless. It is elementary that error without prejudice is no ground for reversal. (Rev. Stat. 1898, secs. 3008, 3285; Snell v. Crowe, 3 Utah 26; Rogers v. Railroad, 90 P. 1075; Chambers v. Emery, 13 Utah 405; Western, etc., Soc. v. Desky, 24 Utah 347; Jenkins v. Mammoth Mg. Co., 24 Utah 513; Garr v. Cranney, 25 Utah 193; Holland v. Railroad, 26 Utah 209; Freed, etc., Co. v. Sorenson, 28 Utah 419.)

And if the errors committed could not have changed the result, the judgment of the court below must be affirmed. (Chambers v. Emery, 13 Utah 405; Wolcott v. Smith, 15 Gray 537; Coal Co. v. Kelly, 156 Ill. 9; Hinds v. Keith, 57 F. 10; Harrison v. Parmer, 76 Ala. 157; 2 Ency. Pl. & Pr., 500-505 and numerous cases cited in notes.)

Another way of stating the rule is that if, upon consideration of the whole record, the judgment of the trial court is plainly right; an appellate court will not reverse the judgment for errors of law which did not affect the merits. (Brown v. Keach, 24 Conn. 73; Bothwell v. Millikan, 104 Ind. 162, 3 N.E. 816; State v. Finney, 125 Ind. 427, 25. N.E. 544; Dunne v. Deery, 40 Lowa 251; Jeffres v. Cashman, 42 Neb. 594, 60 N.W. 895; Harman v. Kelley, 14 Ohio 502, 45 Am. Dec. 552; Sherburne v. Rodman, 51 Wis. 474; Maynard v. Locomotive, etc., Assn., 16 Utah 150; Chambers v. Emery, 13 Utah 405.)

A judgment for respondent will not be reversed for errors of law where appellant was not entitled to recover in any event. (McCreery v. Wells, 94 Cal. 485; Nevitt v. Crow, 29 P. 749; Ice v. Ball, 102 Ind. 42, 1 N.E. 66; Wetmore v. Mellinger, 64 Iowa 741, 18 N.W. 870; Parker v. Fields, 48 Mich. 250; St. John v. Swanback, 39 Neb. 841, 58 N.W. 288; Maynard v. Locomotive, etc., Assn., 16 Utah 150.)

Where appellant's evidence shows that he has no right of action, erroneous rulings adverse to him constitute no ground for a reversal. (Hopkins v. Railroad, 78 Ill. 32; Chambers v. Grout, 63 Iowa 342, 19 N.W. 209; Richards v. Tozer, 27 Mich. 451; Prairie School Tp. v. Hoseleu, 3 N.D. 328, 55 N.W. 938; Milford v. La Rue, 17 Neb. 418, 23 N.W. 8; Maynard v. Locomotive, etc., Assn., 16 Utah 150.)

The burden is always on the appellant to show by the record that the errors complained of worked injury to him. (Morningstar v. Musser, 129 Ind. 470, 28 N.E. 1119; Fulmer v. Fulmer, 22 Iowa 230; Spinney v. Bowman, 10 A. 252; Richards v. Tozer, 27 Mich. 451; Newburg v. Farmer, 1 Wash. T. 182.)

This is equally true when the errors assigned relate to the erroneous admission of evidence; for a judgment will not be reversed for the admission of improper evidence, unless it clearly appears that its admission was injurious to the party objecting. (Green v. Cochran, 43 Iowa 544; Railroad v. Grimes, 38 Kan. 241, 16 P. 472; Decker v. Insurance Co., 66 Me. 406; Harris v. Thayer, 125 Mass. 443; Ripon v. Bittel, 30 Wis. 614; Howe v. Ray, 113 Mass. 88; Sherley v. McCormick, 135 Mass. 126; Somerville v. Richards, 37 Mich. 299; Smith v. Insurance Co., 60 Vt. 682, 1 L. R. A. 216, 6 Am. St. Rep. 144; Garr v. Cranney, 25 Utah 193; Klein v. Hoffheimer, 132 U.S. 367; Finding v. Hartman, 14 Colo. 596, 23 P. 1004; Cowles v. Coe, 21 Conn. 220; Railroad v. Graney, 137 Ill. 628, 25 N.E. 798; Blackmore v. Fairbanks, etc., Co., 79 Iowa 282, 44 N.W. 548; Rivard v. Rivard, 66 N.W. 681; O'Connor v. R. Co., 27 Minn. 166, 6 N.W. 481; Rightmire v. Hunteman, 42 Neb. 119, 60 N.W. 368; Bryant v. Town of Randolph, 133 N.Y. 70, 30 N.E. 657; Fuller v. Coats, 18 Ohio St. 343; Portland v. King, 26 P. 376 [Ore.]; Donovan v. Railroad Co., 93 Wis. 373, 67 N.W. 721.)

As in the instant case, where all the facts are before the appellate court, and where such facts show that the party in whose favor judgment was rendered is entitled to recover, the judgment will not be reversed because of the admission of improper evidence. (Holmes v. Goldsmith, 147 U.S. 150; McLennan v. Bank, 87 Cal. 569; Cowles v. Coe, 21 Conn. 220; Downie v. Nettleton, 61 Conn. 593, 24 A. 977; Lintner v. Millikin, 47 Ill. 178; Dexter v. Harrison, 146 Ill. 169, 34 N.E. 46; Hinckley v. Somerset, 145 Mass. 326, 14 N.E. 166; Robinson v. Mining Co., 5 Nev. 43; State v. Engle, 21 N.J.L. 347; Railroad v. Hendricks, 6 N. Mex. 611, 30 P. 901; Houghton v. Slack, 10 Vt. 520; Kimble v. Ford, 7 Wash. 603; Knapp v. Runals, 37 Wis. 135.)

The admission of irrelevant evidence is no ground for reversing a judgment when it could not have influenced the final determination. (Mining Co. v. Taylor, 100 U.S. 37; Kiewit v. Harris, 17 Neb. 249, 22 N.W. 417; Terry v. Starch Co., 43 Neb. 866, 62 N.W. 255; Cahill v. Hirschman, 6 Nev. 57; Schenck v. Cuttrell, 21 N.J.L. 5; Alsop v. Hutton, 1 Wyo. 284; Davies v. S. S. Co., 89 Cal. 280; Marder v. Leary, 137 Ill. 319; Link v. Railroad Co., 3 Wyo. 680, 29 P. 741.)

The test of the admissibility of expert evidence is not whether the subject-matter is common or uncommon, nor whether the witness can claim superior judgment or powers of reasoning, or better comprehends and appreciates the matters in controversy; but the unbending test is whether the question upon which the evidence is offered is one of science or skill. (12 Am. and Eng. Ency. Law, 423; Taylor v. Munroe, 43 Conn. 36; State v. Watson, 65 Me. 74; Glass Co. v. Lovell, 7 Cush. [Mass.] 319; Chicago v. McGiven, 78 Ill. 347.)

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