Teakle v. San Pedro, L.A. & S.L.R. Co.

• Decision Date: 23 June 1909
• Docket Number: 2014
• Citation: 36 Utah 29,102 P. 635
• Court: Utah Supreme Court
• Parties: NELLIE TEAKLE (as Administratrix of the Estate of Thomas W. Teakle, Deceased), Respondent, v. SAN PEDRO, LOS ANGELES and SALT LAKE RAILROAD COMPANY, Appellant

102 P. 635

36 Utah 29

NELLIE TEAKLE (as Administratrix of the Estate of Thomas W. Teakle, Deceased), Respondent, v. SAN PEDRO, LOS ANGELES and SALT LAKE RAILROAD COMPANY, Appellant

No. 2014

Supreme Court of Utah

June 23, 1909

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action to recover damages for personal injuries resulting in the death of plaintiff's intestate. From a judgment for plaintiff defendant appealed.

Former Decision 32 Utah 276.

AFFIRMED.

Pennel Cherrington and George H. Smith for appellant.

APPELLANT'S AUTHORITIES.

Where damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and he must fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is bound to make out his case by the preponderance of the evidence. (Railway v. Poole's Ad., 40 S.E. 627; Railway v Heath, 48 S.E. 508; Searles v. Railway, 101 N.Y. 661; Shore v. Bridge Co., 11 Mo.App. 278; Beckman v. Railroad, 12 So. 956.)

Richards Richards & Ferry for respondent.

RESPONDENT'S AUTHORITIES.

The verdict of the jury will not be interfered with if there is any evidence to support it. (Stoll v. Mining Co., 19 Utah 271; Wild v. Union Pacific, 23 Utah 265; Garr v. Cranney, 25 Utah 193.)

The determination of questions of facts rests conclusively with the jury. It is the duty of this court to give to the evidence introduced every fair intendment favorable to the contention of the plaintiff and every fair intendment to which it is entitled, to uphold the verdict. This court has so said not once, but many times. (Lowe v. City, 13 Utah 91; Hall v. Railway, 13 Utah 243; Saunders v. Railway, 13 Utah 275; Dederichs v. Railway, 13 Utah 34; Handley v. M. Co., 15 Utah 176; Reese v. M. Co., 15 Utah 453; Anderson v. M. Co., 15 Utah 22; Reddon v. Railway, 5 Utah 344; Seley v. Railway, 6 Utah 319; Andreson v. Depot Co., 8 Utah 128; Woods v. Railway, 9 Utah 146; Smith v. Railway, 9 Utah 141; Hopkins v. Ogden City, 5 Utah 390; Short v. Pierce, 11 Utah 40; Larsen v. Onesite, 21 Utah 38.)

It is not enough that the court inclines to the belief that the verdict should have been otherwise. It must be satisfied and clearly convinced that it was wrong and not supported by any evidence. Not only is this so, but, when a trial court has passed upon that question, with the added opportunities for observation, the decision of that court is entitled to some weight, and every presumption is in favor of its correctness. (Corinne Co. v. Toponce, 152 U.S. 405; Pratt v. Clawson, 7 Utah 254; Cunningham v. Railway, 4 Utah 206; Bowers v. Railway, 4 Utah 215; Cunnington v. Scott, 4 Utah 446; People v. Chalmers, 5 Utah 201.)

McCARTY, J. STRAUP, C. J., and FRICK, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to recover damages for the death of her husband, Thomas W. Teakle, which occurred October 10, 1905, in the yards of the Oregon Short Line Railroad Company, in Salt Lake City, Utah. The complaint, among other things, alleges that "the defendant so carelessly and negligently operated a train of cars propelled by an engine . . . over its tracks at the place above described, giving no warning of its approach, and failing to have any employee at the head of said train and without maintaining any proper lookout, which was being backed in an opposite direction from which the locomotive was headed," and "ran into, knocked down the deceased, and ran over his left arm, mangling and severing it, and thereafter, after appreciating the peril of the said deceased, or being in a position whereby in the use of reasonable care or diligence it might have learned of and appreciated the position of peril of the said deceased, without any protection to him whatever, the said defendant carelessly and negligently continued to move said train in said direction without warning or stopping or making any effort to stop or relieve the deceased from his position of peril, and without any employee at the head of said train or maintaining any proper lookout, as aforesaid, and thereby ran its said locomotive on to and over the head, body, arms, and legs of the deceased, mangling and instantly killing him." Defendant, in its answer, admits the killing of the deceased, Teakle, but denies any negligence on its part, and alleges that the death of the deceased was due to his own negligence. A trial was had which resulted in a verdict for plaintiff in the sum of $ 12,500. Defendant moved the court for a new trial. On the hearing of the motion the court announced that, unless plaintiff would consent that the amount awarded her by the jury be reduced to $ 8000, a new trial would be granted. Plaintiff consented to the reduction, and agreed that judgment might be entered in her favor for $ 8000 only, which was accordingly done. To reverse the judgment the defendant has brought the case on appeal to this court.

The yards in which Teakle was killed are situated in a thickly populated section of the city, and at the time of the accident were uninclosed, and for several years prior thereto had been used by the people generally, "of all classes and all ages, and at all hours of the day," as a thoroughfare without let or hindrance on the part of the defendant, or its lessor, the Oregon Short Line Railroad Company. Numerous railroad tracks traverse these yards in a northwesterly and southeasterly direction. These tracks are connected with crossover and transfer tracks used in switching cars and transferring trains from one track to another. On the morning of October 10, 1905, an engine, a mail, and baggage car, in the order stated, were cut off from a train in the yards standing on one of the main lines and near the depot. The engine and two cars mentioned were then sent north across North Temple street for the purpose of being switched over a transfer track east of the main line, so that when backed up again the engine and cars would be closer to the depot then when on the main line. As the engine and two cars were being backed in a southerly direction, and switched from one track to the other, Teakle, who was walking in the same direction that the train was being moved, stepped in front of the train and was struck by the baggage car, thrown between the rails of the track, and killed. Teakle fell with his head pointing south and his face to the ground, and, as testified to by one witness, "his left arm went out on the rail," and his "right was kind of semicircled in front of his head." The wheels of the car passed over his left arm which was extended across the rail, and severed it from his body. At the time of the accident, the train was moving at the rate of from three to five miles an hour, and continued to so move until the entire train had passed over Teakle. The weather was fair, and there was a clear and unobstructed view of the yards and tracks. The combined length of the engine and tender was seventy-four feet, and that of the mail and baggage cars one hundred and ten feet. The undisputed evidence shows that this train, moving at the rate it was, could have been stopped within the space of ten feet. Several witnesses for respondent testified that, as the train was being moved from the north and switched from one track to another, no signals or warnings of its approach were given, and that there was no one on the south end of the train to warn persons who might be upon the tracks, and to signal the engineer, in case of emergency. Upon the other hand, witnesses for appellant testified that, as the train moved back through the yards, a switchman by the name of Schell was on the east corner of the south end of it keeping a lookout, and that, when Teakle first stepped on the tracks upon which the train was moving, Schell "hollered" as loud as he could and gave a signal to the engineer to stop. The engineer could not see the signal, because the train at that moment was on what is called a "reverse curve," which for the time being obstructed his view of Schell. Being unable to communicate with the engineer by signal or otherwise from the position he was in, because of the curve "elbowing" the train to the east, the side on which the engineer was standing, he (Schell) jumped off the train and ran around in front of it to the west side. On this point Schell, who was a witness for appellant, testified, in part as follows: "I jumped and ran around to the end of the cars and ran down on the west side of the train to get a signal to the fireman. I was giving signals and hollering all the time. I went up on the fireman's side and looked for him, but didn't see him." He further testified that he did not go north on the east side of the train, the engineer's side, when he jumped off the car, because there was a cinder pit full of red hot coals and ashes on the east side and in close proximity to the track at the point where Teakle was struck and knocked down, which made it dangerous for him to go north on that side.

Rayburn a witness for plaintiff, testified: "That he was walking south in the yards a short distance in advance of Teakle, and saw him struck; that he ran north on the west side of the track towards the engine; that when he got opposite Teakle the center of the first car was passing over him; that he continued on a few steps in the direction of the engine and "hollered" for them (the men in charge of the train) to stop; that, failing to attract any one's attention, he ran back to where Teakle was; and that when he arrived there the first truck of the second car had just passed...