Steed v. Rio Grande Western Ry. Co.

• Decision Date: 02 September 1905
• Docket Number: 1608
• Citation: 29 Utah 448,82 P. 476
• Court: Utah Supreme Court
• Parties: STEED v. RIO GRANDE WESTERN RY. CO

82 P. 476

29 Utah 448

STEED v. RIO GRANDE WESTERN RY. CO

No. 1608

Supreme Court of Utah

September 2, 1905

APPEAL from District Court, Davis County; Charles H. Hart, Judge.

Action by Thomas Steed against the Rio Grande Western Railway Company. From a judgment in favor of plaintiff, defendant appeals.

AFFIRMED.

Sutherland Van Cott & Allison for appellant.

APPELLANT'S POINTS.

The undisputed testimony in the case shows that the plaintiff was guilty of contributory negligence in failing to see or hear the approaching train. The rule is settled beyond dispute that it is the duty of a traveler upon a public highway when approaching a railroad crossing to look and listen in both directions for an approaching train, and if he fail to discharge this duty, he is conclusively presumed to be guilty of contributory negligence. In the case at bar, it is entirely clear that the plaintiff neglected to perform this duty, and the court should therefor have given the peremptory instruction requested by the defendant. Vreeland v Cincinnati S. & M. R. Co. [Mich.], 67 N.W. 905; Cantrell v. Erie R. Co. [N. J.], 43 A. 881; Bomboy v. Railroad Co., 47 Hun 425; Stopp v Fitchburn R. Co., 29 N.Y.S. 1008; Hartman v. Harris et al. [Pa.], 37 A. 942; Railroad Company v. Kistler [Ohio], 64 N.E. 130, 133; Hook v. Missouri P. Ry. Co. [Mo.], 63 S.W. 360, 21 E. & A. R. Cas. 787; Tucker v. N.Y. C. & H. R. R. R. Co., 124 N.Y. 308; Houghton v. Chicago & G. T. Ry. Co. [Mich.], 58 N.W. 314; Northern P. R. R. Company v. Freeman, 174 U.S. 379; Railroad Company v. Beale, 73 Pa. 504; Winter v. N.Y. & L. B. R. Co., 50 A. 339; Beyel v. Newport News & Mississippi Valley R. Co. [W. Va.], 45 A. & E. R. Cases 188; Aurelius v. Lake Erie & W. R. Co. [Ind.], 49 N.E. 857.)

Evans & Evans and David Evans for respondent.

RESPONDENT'S POINTS.

The point presented in this case is so elementary that it would seem presumptuous to burden the court with quotations from the books. This court has refused to adopt the rule that travelers must "stop" as well as to "look and listen" before entering upon a railroad track. There can be no dispute as to the principles of law involved. The record shows that respondent did look and listen and adopted every reasonable precaution to secure his own personal safety; that appellant was reckless and wholly disregarded the safety of the traveling public. As to whether respondent was chargeable with contributory negligence is purely one of fact and clearly within the province of the jury to determine. These questions have been repeatedly decided by this court. (Bitner v. Railway, 4 Utah 502; Olsen v. Railway, 9 Utah 129; Smith v. Railway, 9 Utah 141; Leak v. Railway, 9 Utah 246; Deidrichs v. Railway, 13 Utah 34; Peck v. Railway, 25 Utah 21; Ives v. Railway, 144 U.S. 408.)

"The determination of what was contributory negligence on the part of respondent, as would defeat this action, or perhaps more accurately speaking, the question of whether respondent at the time of the final accident was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person under similar circumstances, was no more a question of law for the court than was a question of negligence on the part of the defendant. There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other." (Ives v. Railway, supra.)

While it may be unnecessary for the decision of this case, yet as a legal proposition under the circumstances shown, it does not necessarily follow that although respondent may have been negligent, he should be denied the right to recover. In Railway v. Ives, supra, that court used the following appropriate language: "In such case, if the approximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, an action for the injury cannot be maintained, unless it further appears that the defendant might by the exercise of reasonable care and prudence, have avoided the consequences of the injured parties' negligence." (The italics are ours.) Since that decision this court has many times followed the same rule.

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This is an action for personal injuries alleged to have been sustained by plaintiff in a collision between his team and wagon and a train of cars owned and operated by defendant company. The facts as disclosed by the record are as follows On the 27th day of June, 1903, the plaintiff, who was seventy-seven years of age, was driving a gentle team of horses attached to a common farm wagon in a westerly direction along a public highway, called "Glover's Lane," into what is known as "Farmington Bottoms," and, while in the act of crossing defendant's railroad track where it intersects said highway, a work train, which was going north at the rate of about twenty miles per hour, struck plaintiff's wagon. The wagon road runs east and west, and the railroad runs north and south, and crosses the wagon road at right angles. About 225 feet south of the crossing the railroad passes through a deep cut, which obscures from view trains running north until they emerge from the cut. From 100 to 150 feet east of the crossing there is an elevation from which a train can be seen south of the cut. From this point west the wagon road descends through a depression which obscures from view trains south of the cut. About fifty feet east of the railway track the grade begins to rise to the west, and continues, until the intersection is reached, to an elevation of about six feet. Near by and on the south side of the wagon road a wire fence is constructed through the depression to within about twenty feet of the railway track, from which point the continuation of the fence consists of a closely constructed picket fence about six feet high, which joins the cattle guards, leaving room only for the passage of trains. There is also a line of poles along the east side of the railway track. Plaintiff is a farmer, and owns land lying some distance west of the railway. On the day of the accident he started for his farm, driving his team and sitting with his body stooped and head bowed in a spring seat attached to his wagon box. When he arrived at the elevation referred to, he stopped his team, looked to the south, as was his custom, and, observing no train, to resumed his journey westward along the highway. Being late and in a hurry on the morning in question, he trotted his horses, and went down through the depression "pretty fast," looking and listening for the approach of a train, but seeing or hearing none. At the bottom of the depression he checked the speed of his team, and from that point to the intersection it walked slowly, hardly more than two miles an hour. As he approached the track he looked both ways, and listened for the approach of trains, but he neither saw nor heard any. As he was in the act of crossing the track his wagon was struck by a car which was attached to a work train of twenty-one flat cars being pushed ahead of an engine north through the cut referred to. The wagon was crushed and torn loose from the horses, the latter being left uninjured throwing and landing plaintiff on the opposite end of the car, causing the injuries complained of. There was no warning whatever given by persons in charge of the train, except that almost simultaneously with the collision a person on the car "yelled," which was unavailing on account of being too late. Two years prior to this accident plaintiff at the same place came near being caught by a passenger train which he saw coming out of the cut at about the time his horses...