Spiking v. Consolidated Ry. & Power Co.

• Decision Date: 25 January 1908
• Docket Number: 1874
• Citation: 93 P. 838,33 Utah 313
• Parties: SPIKING et al. v. CONSOLIDATED RY. & POWER CO. et al
• Court: Utah Supreme Court

93 P. 838

33 Utah 313

SPIKING et al. v. CONSOLIDATED RY. & POWER CO. et al

No. 1874

Supreme Court of Utah

January 25, 1908

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Emeline Spiking and others against the Consolidated Railway & Power Company and another. Judgment for plaintiffs and defendants appeal.

AFFIRMED.

P. L Williams, G. H. Smith, and J. G. Willis for appellants.

APPELLANT'S POINTS.

To say or to prove, that a man is ordinarily cautious and careful, constitutes no evidence whatever that at a particular time he was not negligent, because one may be ordinarily both cautious and prudent, and upon a given occasion fail to be either.

Evidence, therefore, that either the plaintiff or the defendant was ordinarily of careful or cautious habits is incompetent and wholly inadmissible. (1 Elliott on Evidence, sec. 186, p. 269; Konold v. Railroad, 21 Utah 379; Adams v. Railroad, 93 Ia. 565, 61 N.W. 1059; Railroad v. McClesh, 115 F. 268; Railroad v. Converse, 139 U.S. 469; Glass v. Railroad, 94 A. 581, 10 So. 215; Chase v. Railroad, 77 Me. 62, 52 Am. Rep. 744; Carr v. Railroad, 163 Mass. 360, 40 N.E. 185; Towle v. Pacific Improvement Co., 98 Cal.--)

The settled rule as respects appliances and the test of negligence in that regard is: were the appliances adopted such as were used and adopted generally and prevailing among prudent and skilful persons or concerns engaged in the same line of business. Whether they were or not depends upon proof as to what appliances are used and adopted among well regulated concerns as they are operated by prudent and skilful persons in that business, and is not a question that the jury can decide for itself, without proof as to how skilful and prudent operators usually conduct their business. (Fritz v. Electric Light Co., 18 Utah 493; 1 Labatt on Master and Servant, sec. 44; Titus v. Railroad, 136 Pa. 618, 20 A. 517; Railroad v. Allen, 78 Ala. 494; Coal Co. v. Brownlie, 60 Ark. 582, 31 S.W. 453; Prybilski v. Railroad, 98 Wis. 413, 74 N.W. 117; Balhoof v. Railroad, 106 Mich. 606, 65 N.W. 592; Cook v. Bell, 20 Sc. Sess. Cas. [2d Series] 137; Finnigan v. Peters, 23 Sc. Sess. Cas. [2d Series] 260; Railroad v. Hall, 91 Ala. 112, 8 So. 371; Guinard v. Knapp-Stout & Co., 95 Wis. 482, 70 N.W. 671.)

Over objection of the defendants, Mrs. Spiking was permitted to testify as to the number of teams owned and employed in Mr. Spiking's business, at the time of the latter's death, and also, was permitted to testify, over defendant's objection, what his income was from these teams a day. This testimony was clearly error, as will be shown from the authorties, not only upon the ground of its uncertain and speculative character, but because there was no pleading of special damage, and a damage to property or business would, of course, be special damage, and not such as would naturally result from personal injury. (Weir v. Railroad, 188 N.Y. 416; Masterton v. Mt. Vernon, 58 N.Y. 395; Goodhart v. Railroad, 117 Penn. St. 1, 55 Am. St. Rep. 705; Bierbach v. Rubber Co. [Wis.], 11 N.W. 514; Silsby v. Mich. Car Co. [Mich.], 54 S.W. 761.)

That one must not only look for a car before stepping upon the track, but must also be held to have seen that which was obvious is so well settled that we call the court's attention to but a very few of the innumerable cases that might be cited: Cawley v. Railroad, 101 Wis. 145, 77 N.W. 179; Boring v. U. I. Co., 61 A. 77; Young v. Railroad, 148 Ind. 54, 44 N.E. 927; Thorsell v. Railroad, 82 Ill.App. 375; McCarty v. Railroad, 120 Mich. 400, 79 N.W. 631; Walkins v. Union Traction Co., 194 Pa. St. 564, 45 A. 321; Fitzgerald v. Railroad [Mass.], 80 N.E. 224; Nellis on Street Surface Railroads, p. 365, and cases cited.

Powers & Marioneaux for respondents.

RESPONDENT'S POINTS.

"Evidence is received (in cases of death by wrongful act) in regard to many matters which, in actions for personal injury, are irrelevant and immaterial. The age, health, occupation, means, habits, capacity, education, temperament, character and other similar facts relating to the deceased were admissible as tending to show her probable pecuniary usefulness to the beneficiary." (Skatlane v. Railroad, 30 P. 222; Hayes v. Williams, 30 P. 352; Carlson v. Railroad Co., 28 P. 497; Tertu v. Railroad, 46 N.W. 897; Railroad v. Long, 24 L. R. A. 637; Railroad v. Gilmore, 53 S.W. 61; Railroad v. Perkerson, 38 S.E. 366; James v. Railroad, 92 Ala. 235, 9 So. 335; Oakes v. Railroad Co., 49 A. 418.)

Unlike steam cars, the electric cars run or may be run at times, through streets crowded with vehicles and people and therefore instead of being vested with the right to run at a rapid rate of speed, they are required to make a reasonable use of the streets consistent with the rights of other persons and vehicles, who may occupy the street in conjunction with them. (Benjamin v. Railroad, 160 Mass. 3, 39 Am. St. 446; Commonwealth v. Temple, 14 Gray, 69, 75; Fairbanks v. Railroad, 95 Me. 78, 49 A. 421; Warren v. Railroad, 95 Me. 115, 49 A. 609; Marden v. Railroad, 100 Maine 41, 109 Am. St. 479; Robbins v. Railroad, 165 Mass. 30, 42 N.E. 334; Benjamin v. Railroad, 160 Mass. 3, 39 Am. St. 446; Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 33 L. R. S. 122; Wendall v. Railroad, 91 N.Y. 429; Marden v. Railroad, 100 Me. 41, 109 Am. St. 484; Railroad v. Whitcomb, 14 C. C. A. 183, 66 F. 915; White v. Railroad, 167 Mass. 43, 44 N.E. 1052; Evers v. Traction Co., 176 Pa. St. 376, 53 Am. St. Rep. 674; Railroad v. Gentry, 147 Ind. 408, 62 Am. St. Rep. 421.)

"It is the settled law that one must object to improper testimony when it is offered or abide by the result. The failure to object at the proper time waives the error." Citing Jones on Evidence, sec. 898. (Huges v. Ward, 38 Kan. 452, 16 P. 810; Railroad v. Wynant, 134 Ind. 681, 34 N.E. 569; Dallmeyer v. Dallmeyer [Pa.], 16 A. 72; Railroad v. Kern, 9 Ind.App. 505, 36 N.E. 381; Perkins v. Quarry Co. (Com. Pl.), 32 N.Y.S. 230; Haverly v. Elliott, 39 Neb. 201, 57 N.W. 1010; Well Co. v. Vermillion [S. D.], 61 N.W. 802.)

"Two of the exceptions argued relate to the refusal of the court to strike out certain evidence which was not objected to when offered. Without discussing the question whether the evidence should have been received, had timely objection been interposed, it is sufficient to say that the rule is well settled that a refusal to strike out, in such circumstances, is not error." (Bailey v. Warner, 118 F. 395; Prentice v. Goodrich, 36 N.Y.S. 740; Barnes v. Christofferson, 62 Minn. 318; Wilson v. Northern Pac., 26 Minn. 278; Gran v. Houston, 45 Neb. 813; Martin v. Block, 24 Mo.App. 60; Railroad v. Owen, 8 Kan. 409; Pescia v. Societa, etc., 86 N.Y.S. 952; Mollineaux v. Clapp, 90 N.Y.S. 880; Cronk v. Railroad, 123 Iowa 349; McGarrity v. Railroad, 25 R.I. 269, 55 A. 718; Slatterly v. Slatterly [Iowa], 95 N.W. 201; Harvesting Co. v. Carpenter [Neb.], 95 N.W. 617; Poehlman v. Kertz, 204 Ill. 418, 68 N.E. 467; McMartin v. Corascaden [Mont.], 86 P. 35; Poindexter & Oregon L. S. Co. v. Railroad [Mont.], 83 P. 887; Coal, Coke & Iron Co. v. Nichols [Ala.], 39 So. 762; Telegraph Co. v. Hope, 11 Ill.App. 289; Gurley v. Park, 135 Ind. 440, 35 N.E. 279; Railroad v. Champion, 9 Ind. 510, 53 Am. St. 357; Campbell v. Connor, 15 Ind.App. 23, 43 N.E. 688; Palmer v. Wicherly, 15 Neb. 98, 17 N.W. 734; Hall v. Ernest, 36 Barb. 585; Oswald v. Kennedy, 48 Pa. 9; Lowery v. Robinson, 141 Pa. 189, 21 A. 513; Montgomery v. Cunningham, 104 Pa. 349; McCoy v. Munro, 78 N.Y.S. 849; Parker v. Paine, 76 N.Y.S. 942; Treschman v. Treschman [Ind. App.], 61 N.E. 961; Tuttle v. Wood [Iowa], 88 N.W. 1056; Watts v. Howard [Minn.], 72 N.W. 840; Larson v. Kelley [Minn.], 75 N.W. 13; Fulton v. Ryan, 60 Neb. 9, 82 N.W. 105; Murphy v. McCarthy [Iowa], 78 N.W. 819; Wysor Land Co. v. Jones [Ind.], 56 N.E. 46; Pittman v. Pittman [Ala.], 27 So. 242; Railroad v. Bryan [Texas], 27 S.W. 234; Linn v. Russell, 42 New York, 256; Platner v. Platner, 78 New York 90.)

FRICK, J. McCARTY, C. J., and LEWIS, District Judge, concur.

OPINION

FRICK, J.

This is an action for damages for personal injuries resulting in death. The plaintiffs, respondents in this court, are the widow and minor children of the deceased, Thomas W. Spiking who, in August, 1902, was fatally injured by a street car while attempting to cross the street railway tracks on one of the streets in Salt Lake City. The acts of negligence charged against the defendants, appellants here, are: The omission to sound a gong or ring a bell, or to give any warning of the approaching car; the omission to have the headlight on the car lighted, and in omitting to have any lights on the car; the omission to have the car provided with a fender or guard of any kind; operating the car at a high and reckless rate of speed with the brakes released, and not having the car under the control of the motorman or any other person while approaching and passing onto a certain switch, the place of the accident, and in omitting to look and ascertain whether the track was clear and free from persons passing to and fro at the point of the accident. The evidence is very voluminous, over thirty witnesses having been examined, a number of whom were eye witnesses to the accident; and, as is usual, there is a conflict with regard to just how and when certain matters occurred, and with regard to the existence or nonexistence of others. From a careful reading of the entire transcript of the evidence, the following facts may be said to be fairly established: The point, or immediate vicinity, of the accident, is one of the principal business centers of Salt Lake City. The accident occurred on East Second South street, about eighty-five feet east of the east crossing of...