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

• Decision Date: 09 May 1907
• Docket Number: 1827
• Citation: 90 P. 402,32 Utah 276
• Parties: TEAKLE v. SAN PEDRO, L. A. & S. L. R. CO
• Court: Utah Supreme Court

90 P. 402

32 Utah 276

TEAKLE v. SAN PEDRO, L. A. & S. L. R. CO

No. 1827

Supreme Court of Utah

May 9, 1907

APPEAL from District Court, Third District; before Justice T. D Lewis.

Action by Nellie Teakle, as administratrix of the estate of Thomas W. Teakle, deceased, against the San Pedro, Los Angeles &amp Salt Lake Railroad Company. From a judgment for defendant plaintiff appeals.

REVERSED, AND NEW TRIAL GRANTED.

Richards, Richards & Ferry for appellant.

APPELLANT'S POINTS.

The evidence sought to be introduced by these questions and offer was clearly competent to show that the defendant had a last chance of avoiding the accident regardless of any negligence that may be imputed to the deceased. Since the time of Davies v. Mann the courts unanimously have upheld this principle and this court has concurred in it--that one who last has a clear opportunity of avoiding an accident, notwithstanding the previous negligence of his opponent, is considered solely responsible for the injury. (Thompson v. Rapid Transit Rd. Co., 16 Utah 281; Shearman and Redfield on Negligence [5 Ed.], sec. 99; Burgess v. Railroad 17 Utah 406.)

Whittemore & Cherrington for respondent.

RESPONDENT'S POINTS.

"If taking these precautions he would have seen or heard the approaching train the very fact of injury will raise a presumption that he did not take the required precaution." (Herbert v. Southern Pacific Co., 53 P. 651; Green v. Railroad, 76 P. 719.)

Excepting in Pennsylvania and Ohio we believe the decisions as to "look and listen" are unanimous and to the effect that a recovery cannot be had for injuries sustained by one who himself voluntarily, deliberately and negligently contributed to such injuries, and that the negligence of the defendant, whether proven or admitted, becomes in such cases immaterial unless so gross as to amount to wantonness or malice. (Olsen v. Railroad, 9 Utah 129; Peck v. Railroad, 25 Utah 21; State v. Railroad, 49 Am. 622; Buelow v. Railroad, supra; Railroad v. Houston, supra; Railroad v. Mosely, supra; Green v. Railroad, supra; Schmidt v. Railroad, 3 L. R. A. [N. S.] 196; Baker v. Railroad, 87 P. 826.)

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

OPINION

STRAUP, J.

Plaintiff brought this action to recover damages for the death of her intestate, alleged to have been caused through the negligence of the defendant. The accident occurred at Salt Lake City between First North and North Temple streets, in the railroad yard of the Oregon Short Line Railroad Company, along and over the tracks of which the defendant operated its cars. The yard and tracks were not inclosed, and extended in a southeasterly and northwesterly direction for several blocks, and had been traveled by numerous persons in going to and from their work, and had been generally used and traveled by men, women, and children as a thoroughfare, for eight years or more without objection. While they were so being used, the employees of the defendant were there and knew of such use without making any objection thereto. At the corner of First North and Fourth West streets there was a sign which read that the tracks were railroad property, and trespassers were warned to keep off, but, notwithstanding the sign, the tracks and yard were continued to be used by the public generally as a thoroughfare without hindrance or objection. The tracks and yard were along thickly settled portions of the city. At about 7:40 a. m. of the 10th day of October, 1905, the deceased, who lived on First North street and west of the yard, in going toward his place of work, at a store in the business portion of the city, was walking in the yard with a companion in a southerly direction between two parallel tracks, about thirteen feet apart. While the deceased was so walking along in the yard between First North and North Temple streets, the defendant, engaged in switching cars in the yard, operated a train of cars, consisting of an engine, tender, mail car, and baggage car, in a northerly direction, and on what is called the "main" track, which lay to the west of where the deceased was walking. The train was operated past him and beyond a switch, some little distance to the north of the deceased. It was then backed and moved in a southerly direction at a speed of from three to five miles an hour, and was switched from the main track to a track immediately to the east of it. The evidence is not very clear whether the deceased was walking between the main track and the track immediately east of it, or between two tracks east of the main track. However, as the train was being switched from the one track to the other, and as the baggage car, which was the first car approaching him, reached the junction of the track east of the main track and the cross switch track, the deceased, who was on the track at that place, was struck by the baggage car, and was thrown between the rails of the track and was killed. There were about six other persons walking along the tracks in the yard and in a southerly direction at the same time that the deceased and his companion were so doing. Some of them passed the deceased on the way. One of them testified that he saw the train go to the north; that he expected it to come back; that he turned around and looked for it; that, when he was on the south side of North Temple street (a short distance south of the place of the accident), he saw the deceased "on the track at the frog where a switch track crosses from the track to the west into the track on the east. When the deceased was struck, the south end of the car was still on the switch track, and had not turned to the easterly track. The engine was pointing toward the north." Another witness testified: "When I got to North Temple street I heard a yell and turned around. I saw Teakle [the deceased] immediately in front of the car at a point where the switch track comes from the track to the west of where he was walking into the track to the east of where he was walking. He had not changed his course when the car struck him." From this testimony it may be inferred that the deceased was walking between the main track and the track immediately east of it, and was crossing or walking on the switch track connecting these two tracks when he was struck. The brakeman, who was on the front or south end of the baggage car testified: "When I first saw these men [the deceased and his companion], they were in the open space between the cinder pit and the track [which was between the two tracks east of the main track], walking south, clear of the train on the track that we were on. They stepped over on our track about twenty feet in front of us." Either view of the evidence, however, shows that the deceased stepped on the track in front of the moving train. The morning was bright and clear, and the deceased's view of the train was wholly unobstructed. The ground was practically level, sloping slightly to the south. The train could easily have been seen by him, and he could easily have been seen by the train crew. Four witnesses, persons who were walking along the yard at the time in question, testified that they heard no whistle blown nor bell rung, nor any warning given before the collision and as the train approached, and that, had such warnings been given, they would have heard them. One witness also testified that, when the deceased was struck, he was thrown between the rails with his head to the north and his arm thrown over the east rail of the switch track, and that the witness, who was but a short distance away, "immediately ran back to where he was, and when I reached there he was still lying in the same position as he had fallen. Hadn't been moved, and his clothing was not disarranged. The set of trucks on the north of the car had not reached him. I saw this end of the car pass over him, also the car following, and the tender of the engine, during all of which time he remained in the same position and with his clothing in the same condition. I know that he was alive when I first reached him, because I saw him lower his head. In passing over him no part of the train touched him, except one brake rod, which merely touched his clothing, until he was struck by the fire box of the engine," which rolled and dragged him, and when he came out from under the cowcatcher he was crushed and doubled up, and was then dead. Several other witnesses testified to the same facts. Another witness testified that, when he reached the place where the deceased was lying, the north end of the truck of the car which struck him had not yet passed over the deceased, and that the witness then ran along the track to the north a distance of three or four yards on the fireman's side of the train, hallooing that there was a man under the train and to stop; that he did not see the fireman in the cab, and could not attract his attention; and that he then returned to the place where the deceased lay. The train was about 184 feet in length. The brakeman testified that he was on the southeast corner of the baggage car, and, when the deceased stepped on the track, he hallooed and tried to attract his attention; that he (the brakeman) gave signals to the engineer to stop as soon as the deceased was struck; that the baggage car was on a reverse curve, which would constitute some obstruction to the engineer's view; that he gave no other signal on the car because he knew that the engineer could not see any further signals given on the car, because of the curve, and that he then jumped off the east end of the car, and ran around in front of the moving train to the west side and gave a signal on the fireman's side. He further testified: "I could not get off of the car on the east to any advantage, simply because there was a cinder pit in front of...