Thomas v. Oregon Short Line R. Co.

• Decision Date: 12 January 1916
• Docket Number: 2800
• Citation: 47 Utah 394,154 P. 777
• Court: Utah Supreme Court
• Parties: THOMAS v. OREGON SHORT LINE RAILROAD CO

154 P. 777

47 Utah 394

THOMAS v. OREGON SHORT LINE RAILROAD CO

No. 2800

Supreme Court of Utah

January 12, 1916

Appeal from District Court, Third District, Hon. F. C. Loofbourow Judge.

Action by Pearl Thomas, an infant, by William Thomas, guardian ad litem, against the Oregon Short Line Railroad Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

Thos Marioneaux and Willard Hanson for appellant.

APPELLANT'S POINTS.

Plaintiff was not a trespasser. The track had been used as a passage-way for children and others who had occasion to go to and from the Bonneville school, and in the vicinity of the school for a great many years, and distinct trails led to and from the track, and under the conditions that existed the defendant owed plaintiff the same duty as though the injury occurred at a public street crossing. (See Teakle v Ry. 32 Utah 276, Young v. Clark, 16 Ut. 42, Christensen v. Ry., 39 Ut. 192, Gesas v. Ry., 33 Ut. 156, Corbett v. Ry., 25 Ut. 449, Palmer v. Ry., 34 Utah 466.

The plaintiff was but a child of 8 years of age and as to such children it cannot be said, as a matter of law, that she was guilty of contributory negligence. The train, while possibly not moving at a rate of speed prohibited by law, had failed to give the warning and signals that the law provided should be given for the safety of the residents of the city, and such an unlawful act was neglect per se. (Riley v. Rapid Transit, 10 Ut. 428; Wilkinson v. Ry., 34 Ut. 110; Palmer v. Ry., 34 Ut. 466; 33 Cyc. 793-4.)

Defendant cannot excuse itself on the ground of impossibility to stop in time to avoid the injury, when its negligence made it impossible. (Murrell v. Mo. P. Ry. Co., 79 S.W. 505; Ry. v. Jackson, 120 S.W. 158, Ry. Co. v. Patchen, 47 N.E. 368; Ry. Co. v. Sanders, 39 N.E. 481; Ry. Co. v. McMarries, Adms., 108 S.W. 898. A child is only required to exercise that degree of care and discretion that is reasonably expected in children of the same age. (Christensen v. O. S. L. Ry. Co., 29 Ut. 192; Riley v. Rapid Transit Co., 10 Ut. 428; Denver City Tramway Co. v. Nicholas, 84 P. 813; Smith v. Pittsburg & W. Ry. Co., 90 F. 783.)

Geo. H. Smith, J. V. Lyle and Paul Williams for respondent.

RESPONDENT'S POINTS.

The child thoroughly appreciated the danger of railroad tracks. She knew what they were for and what the particular danger was, that trains might come along at any time of the day or night in either direction, and several times stated that she knew it was dangerous to cross tracks without first looking or listening for approaching trains; and further stated that she usually did do so but forgot on this occasion. Her conduct was to be determined by her knowledge, capacity, understanding and appreciation of the danger. (Cromeenes v. S. P., L. A. & S. L. R. R. Co., 37 Utah 475-7; Gesas v. O. S. L. R. R. Co., 33 Utah 156; Wendell v. N.Y. C. & H. R., 91 N.Y. 420; Twist v. Winona & St. P. R. R., 39 Minn. 164; 12 Am. St. Rp. 626; Egley et al. v. O. R. & N. Co., 2 Wash. 409; 26 P. 973; Studer v. S. P. Co., 121 Cal. 400; 66 Am. St. 39; Marryman v. Chicago, etc., R. R., 85 Iowa 634; 5 N.W. 545; Krenzer v. Pittsburgh R. R., (Ind.) 43 N.E. 649; Raden v. Ga. Rd. Co., 78 Ga. 47; Masser v. Chicago, etc., R. R., 68 Iowa 692; 27 N.W. 776; Cent. R. R. Co. v. Bonison, 70 Ga. 207; Powers v. Chicago, etc., R. R., 57 Minn. 322; 59 N.W. 307; Tucker v. N.Y. Cent. & H. R. R. R. Co., 124 N.Y. 308; Gay v. Essex St. Ry. Co., 159 Mass. 238; 21 L. R. A. 448; Wallace v. N.Y. etc. Rd. 154 Mass. 236; Thompson v. Buffalo Rd. Co., 39 N.E. 709; Penn. Rd. Co. v. Lewis, 79 Pa. St. 33.)

STRAUP, C. J. FRICK, J., concurs. McCARTY, J., dissenting.

OPINION

STRAUP, C. J.

This is an action to recover damages for personal injuries alleged to have been suffered through the negligence of the defendant. The accident occurred on one of the defendant's tracks in the northern limits of Salt Lake City, several hundred feet south of a public school building and in an inhabited and well-settled portion of the city. A track on the east of the school building ran to a quarry north and east of the building. To the south the track led into another track running west of the building. The accident occurred a short distance north of the junction of these tracks. There were also a number of tracks west of these. It was averred, and evidence was given to support the averments, that for a long time, with the knowledge and acquiescence of the defendant, the track on which the injury occurred had been traveled and used by school children in going to and from school and by others generally as a foot path. The defendant, on the quarry track, was operating an engine backwards drawing cars from the quarry. The charged negligence is that the defendant failed to give warning of the train's approach by sounding the whistle and ringing the bell, failed to observe a lookout, and operated the engine and cars in violation of an ordinance requiring a constant ringing of bells of locomotives in motion in inhabited portions of the city, and negligently failed to have the engine under proper control and to stop it and avoid the injury. The defendant denied the charged negligence, and averred contributory negligence.

The plaintiff was eight years of age. She had just come from a dismissal of school. At the place of the accident four or five section men were at work. There is evidence to show that the whistle on the engine was sounded and the bell rung at a crossing near the school building, about 300 feet north of the place of the accident, but that the bell was not ringing at the time of the accident and had not been rung nor had the whistle been sounded for a distance of about 300 feet. As the train approached the plaintiff and other children were standing with or near the section men, 6 or 8 feet from the track. A switchman stood on the footboard of the engine and on the foremost part of it as it approached. When the train was but a few feet away, the plaintiff started to run across the track in front of the moving engine to go on the other side of the track and down the railroad yard to play with a little girl companion. The switchman, seeing her, reached for her just as she stumbled and fell forward. She cleared the track, except the toes of one foot, which were run over and so injured as to require amputation. The plaintiff testified:

"I had been to school that day. It was in the afternoon. I was going home from school, and there was a train on the other side of the track. I did not see the one coming. I was going to run down in the yard to play with Sara's little sister. I didn't see the train coming, so I went across the track, and then I slipped. I fell down, and the train ran over my toes. Then Mrs. Nelson came out and carried me in the house, and took off my shoes and stockings."

On cross-examination she testified:

"We started from school as soon as it was out. We went down the track on the right side. We did not walk between the rails. We walked to one side. I saw some men working along the track. I knew one of them. There were three or four other men. I did not know them. I saw a hand car off to one side of the track. I don't know much about tracks. I know there were a good many tracks there. Some of them were passenger tracks and some of them were freight tracks. The two nearest our house are passenger tracks; then there are the freight tracks; then the spur tracks off from the freight tracks. The men that were working were down towards the end of the spur track. I had passed the cattle guard when the accident happened. The men working there were just below the cattle guards. I knew that passenger trains passed on these two tracks, and that freight trains passed both ways on the freight line. I also knew that trains ran up on this track that went past the school out into the gravel pit. I have seen trains go back and forth on these and other tracks when I have been going and coming from school. I knew that I had to keep out of the way of a train. I knew that if I got on the track in front of the train that I might get hurt. I knew of the dangers of the tracks. I knew that, if I got on the track in front of the train, it could not be stopped, and that I would get hurt if I stayed there. I knew a train could not be stopped as quick as I could stop walking. I knew that before crossing a track I would have to look out to see whether they were clear or not. I would make it a business to look across a track before crossing. I knew that if I did not look and listen for trains when I started to cross a track that I might get hurt. I have waited for trains to pass before I crossed the track. One can look up the track from Mrs. Nelson's and see a train above the Bonneville School. While I was talking to Henry (one of the workmen) the little Van Leuwen girl was with me. She was up by me. I was off to the side of the track. I did not see any one move away from the track while I was talking to Henry. I did not see them stop work. The men were using picks. I did not see them stop and step back. Up to the time that I started to cross the track I had been standing still. I did not see the train coming, and I did not know that it was coming. I have heard gravel trains come down, and heard the squeaking and screeching of the wheels. Sometimes the trains make a big noise. I did not hear that on that day. I had not seen the train coming. I was eight or nine feet from the track when I started to cross it. I started straight across. I did not decide to run across to get across before the train came. It was after I fell that I knew that the train was coming. The train did not strike me. I stumbled and fell. After I fell I could not get out of the way. It ran over me before I saw it. The bottom of my foot was...