Smith v. Rio Grande W. Ry. Co.

• Decision Date: 19 June 1893
• Citation: 33 P. 626,9 Utah 141
• Court: Utah Supreme Court
• Parties: JOHN W. SMITH, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

33 P. 626

9 Utah 141

JOHN W. SMITH, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 19, 1893

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial, Hon. John W Blackburn, judge. The opinion states the facts.

Affirmed.

Messrs Bennett, Marshall and Bradley, for the appellant.

Messrs King and Houtz, for the respondent.

SMITH, J. ZANE, C. J., and MINER, J., and BARTCH, J., concurred.

OPINION

SMITH, J.

On this appeal the only question presented for our consideration is whether or not the evidence is sufficient to justify the verdict of the jury. No errors of law whatever are assigned. The action was commenced by the plaintiff to recover $ 15,000 for personal injuries alleged to have occurred to him by reason of a collision with one of the defendant's trains. The verdict was for $ 7,500, which the plaintiff voluntarily abated to $ 3,500. The facts, in substance, are, as claimed by the plaintiff, that on the 6th day of July, 1891, the plaintiff, in company with one Watters, was riding in a wagon on the public highway in the town of Springville, in Utah county, at a point where it intersected the line of the defendant's railway, at about the hour of 11 o'clock at night; that the wind was blowing fiercely from the north or northeast; that the plaintiff was driving towards the northeast, from the southwest, at the point of crossing; that the railway train of the defendant approached the crossing from the southeast, moving toward the northwest, the intersection of the railway and highway being practically at right angles. As to the situation of the premises, there is no controversy. Plaintiff and Watters both testify that, shortly before they reached the railway crossing, plaintiff stood up in his wagon, and looked to the southeast, along the line of defendant's railway, for the train which was expected about that time; that after looking for some time, about a minute,--so the plaintiff said,--the plaintiff sat down in the wagon bed, with his face to the south. This statement is corroborated by Watters.

The wagon in which plaintiff was riding was 20 feet from the track when he sat down. As the team passed upon the track it was struck by the defendant's train. One of the horses was killed. The wagon was turned over. The plaintiff was thrown out, and injured, by coming in collision with the locomotive. The extent of the plaintiff's injuries is testified to by several witnesses, and, while some question is made here as to the sufficiency of the proof upon that subject, there was no proof against the claim of the plaintiff on that point; and we think the evidence of the plaintiff, as to the extent of his injuries, was certainly sufficient to warrant the jury in returning a verdict in his favor. The plaintiff testifies that he looked and listened for the train; that no whistle was sounded, and no bell was rung, in approaching the crossing. Watters swears to substantially the same thing. A brother of the plaintiff, who was riding on horseback some 150 yards in the rear of the wagon, also testifies that no signal of the approach of the train was given. Against this testimony the defendant offered the testimony of the railway conductor, of the locomotive engineer, and of the locomotive fireman, on the train in question, to the effect that the whistle was sounded before reaching the crossing. All of them swear positively that this was done. The locomotive engineer and fireman testified that it was sounded about 200 yards distant from the crossing. Neither of them claimed that the bell was rung. The failure to sound the whistle or ring the bell, or give any warning of approach, is the negligence relied upon by the plaintiff.

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