Taylor v. Bamberger Electric R. Co.

• Decision Date: 14 September 1923
• Docket Number: 3933
• Citation: 220 P. 695,62 Utah 552
• Court: Utah Supreme Court
• Parties: TAYLOR v. BAMBERGER ELECTRIC R. CO

220 P. 695

62 Utah 552

TAYLOR v. BAMBERGER ELECTRIC R. CO

No. 3933

Supreme Court of Utah

September 14, 1923

Rehearing denied December 5, 1923.

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by Leslie Taylor against the Bamberger Electric Railroad Company. Judgment for plaintiff, and defendant appeals.

REVERSED.

DeVine Howell, Stine & Gwilliam, of Ogden, for appellant.

Halverson & Pratt, of Ogden, and Marioneaux & Beck, of Salt Lake City, for respondent.

FRICK, J. WEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ., concur.

OPINION

FRICK, J.

Plaintiff recovered judgment against defendant, a common carrier, for personal injuries alleged to have been sustained through the negligence of the defendant while plaintiff was a passenger on one of defendant's passenger trains.

Defendant appeals from the judgment and assigns a large number of errors.

The undisputed facts material to this appeal are: That on September 4, 1916, plaintiff purchased a ticket from defendant at Ogden, Utah. The ticket entitled him to passage from Ogden to "Lagoon" and return. Lagoon is what is called a summer resort on defendant's railroad about 15 miles north of Salt Lake City and about 21 miles south of Ogden and is open to the public during the summer months of each year, and it seems is largely patronized by the public. September 4, 1916, was what is known as Labor Day, a legal holiday, and was the last day the resort was open for the season of 1916. The record shows that defendant operated a large number of trains running between Ogden and Salt Lake City each day during the resort season, and on the day in question, on which trains patrons of the resort and passengers generally were carried to and from the resort and to and from all the stations on defendant's route between the cities aforesaid. The day in question being Labor Day, a large number of people visited the resort, among whom was the plaintiff. The tickets, it appears, were good for passage on all of the trains passing the resort. On the day in question defendant had posted a notice that the train on which plaintiff took passage would leave Lagoon for Ogden some time between 11 o'clock and midnight and would be the last train that night. Plaintiff remained at the resort and was dancing until about the time the so-called last train was to leave for Ogden, when he and a friend of his left the dance hall to take the train for Ogden. Defendant's cars were operated by electricity by means of an overhead trolley. The testimony shows that the train on which plaintiff and his friend sought passage on the night in question consisted of five cars, some of which were what are called "open" cars; that is, cars with steps running along the entire length of both sides of the cars by means of which the passengers can enter or leave at any point along the sides of the cars. When plaintiff and his friend arrived at the train, they entered one of the closed cars; but, finding the seats occupied, as plaintiff testified, they went forward through several cars to a car in which there was a smoking compartment, which they entered, but finding all the seats occupied in that car, they stood up in the aisle until the train had reached Layton, a station about six miles from Lagoon on the way to Ogden. On arriving at Layton plaintiff and his friend left the smoking car through an open window for the alleged reason that the smoking car was filled with smoke, was warm and uncomfortable, although both of them smoked while they were in the car. They went through the window, they say, to avoid forcing their way through the crowded condition of the cars. Plaintiff testified that before entering the cars at Lagoon he noticed the crowded condition of the cars, and that, stating it in his own language, "they were vastly overcrowded," including the steps on the open cars. He said that when they arrived at Layton the cars were so crowded that they, he and his friend, could not pass through the aisles, and that he knew the cars were in that crowded condition when he left the smoking car as before stated, but noticing that some passengers had alighted from the train they, nevertheless, went back to get onto one of the other cars. Both he and his friend stated that after leaving the smoking car they ran to the rear of the train and got onto the steps of one of the open cars while the train was still standing, and that he saw and knew the crowded condition of the steps at that time. In that connection, he, on cross-examination, in referring to the crowded condition of the car steps, was asked the following question which he answered as indicated:

"Q. You knew. And knowing that, you boarded that running board (the steps) and grabbed your companion's shoulder or something else and risked your life to ride to Ogden? A. Yes, sir."

He also testified that he though that getting on the running board was "a dangerous position." Further:

"Q. You knew that a dangerous position would result in personal injury to you if the danger befell you, didn't you? A. I did, I presume. Q. You took that position risking the chance that it would not (injure you), didn't you? A. The position I took, yes."

Referring to the time immediately after plaintiff and his friend had left the smoking car and undertook to get onto the open car, he was asked:

"Q. When you boarded this side board (the steps), on this car, there wasn't any space for yourself, as I understand it? A. We had to wedge ourselves in there; yes, sir. Q. So that you didn't get in a space vacated by other passengers; you simply crowded your way up the running board (the steps), elbowing the people apart sufficiently to find a space for you to stand? A. Why--Q. Answer it yes or no. Did you, or didn't you? A. Yes, sir."

The plaintiff and his friend made additional statements to the same effect, but it is deemed unnecessary to set them forth at large. Plaintiff also said that he would have been safe if he had remained in the smoking car or in the car he first entered. One of the plaintiff's witnesses, who was in one of the other cars, also testified that while the cars were crowded and all the seats were occupied, there nevertheless "was some standing room in the aisles of the car." The testimony on the part of plaintiff further showed that within a few minutes after the train had left Layton it "lurched" or "swayed," first to one side and then to the other, and that by reason thereof plaintiff fell or was thrown from the steps on which he was standing; that one of his legs fell onto one of the rails of the track, and the wheels of the car passed over it and crushed it. Indeed, the evidence is to the effect that plaintiff suffered severe injuries, resulting in the amputation of one of his legs. Plaintiff also proved that at or near the point where the train lurched or swayed as aforesaid there was a switch, and that there were three or four ties that had become loose or unstable by reason of the fact that water had run under them and had washed some of the ballast or earth from underneath the ties leaving the track in an unstable condition, so that the rails would be pressed down by the weight of the train passing over the point in question, and that it was the unsafe condition of the track that caused the car on which plaintiff rode to violently sway or lurch, and that that caused him to fall from the steps on which he was standing. There were a number of plaintiff's witnesses who testified to the lurching or swaying of the cars while passing over the track at the point before stated. The evidence was clear and explicit, however, that the lurching or swaying of the cars did not injure any one inside of the cars. Moreover, so far as the evidence discloses, none except plaintiff was injured.

It was also contended that defendant was negligent in failing to properly light some of the cars, and that it was negligent in some other respects. In view, however, that it does not appear that any of those alleged acts of negligence caused or in any manner contributed to the plaintiff's injury, those matters are of no importance and will not be referred to further.

While, as defendant's counsel state, there is no evidence that defendant had notice of the defective condition of the track, and further that there is no evidence respecting the length of time the defective condition existed so that notice of it might be inferred, yet, for the purposes of this decision, we shall assume that the evidence was sufficient to charge defendant with notice of the defective condition of the track and that the defect was of such a nature as to authorize the jury to find that defendant was negligent in not maintaining its track in a safe condition and hence had not discharged that high degree of duty in that regard that the law imposes upon it.

Defendant's counsel, however, vigorously insist that even though the foregoing conclusion should prevail, yet that in view of plaintiff's conduct, which we have set forth, he is not entitled to recover as matter of law and that the district court erred in refusing defendant's request to instruct the jury to return a verdict in favor of defendant, no cause of action, for the reason that plaintiff was guilty of contributory negligence which caused the injury and that he assumed the risk as matter of law. It is further contended that the verdict and judgment are contrary to law. The foregoing constitute the principal assignments of error. In view that they present very important questions of law, we shall consider them somewhat at length.

The questions, therefore, for this court to determine are: Did plaintiff's acts and conduct, as stated by himself constitute contributory negligence per se, and did he assume ...