Thompson v. Salt Lake Rapid-Transit Co.

• Citation: 16 Utah 281,52 P. 92
• Decision Date: 19 February 1898
• Docket Number: 882
• Court: Supreme Court of Utah
• Parties: JOSEPH M. THOMPSON, RESPONDENT, v. SALT LAKE RAPID TRANSIT CO., APPELLANT

52 P. 92

16 Utah 281

JOSEPH M. THOMPSON, RESPONDENT, v. SALT LAKE RAPID TRANSIT CO., APPELLANT

No. 882

Supreme Court of Utah

February 19, 1898

Appeal from the Third district court, Salt Lake county. A. N Cherry, Judge.

Action by Joseph M. Thompson against the Salt Lake Rapid-Transit Company. Plaintiff had judgment, and defendant appeals.

This action was brought to recover damages for negligently causing the death of the plaintiff's son. The complaint charges that the defendant negligently and carelessly failed to have its cars supplied with suitable brakes, switches, and motors and that by reason thereof, and of the negligent and careless operation of its car, it was driven on and over the plaintiff's son, a minor child of 15 years, who died from the effects of the injuries received. The testimony on the part of the plaintiff was to the effect that, upon the day in question, the defendant's car was proceeding in an easterly direction along Fourth South street, Salt Lake City at the rate of 6 or 7 miles an hour; that at this time the plaintiff was engaged in vending in said city, and had stopped his cart on the east side of the street, at a distance of about 40 feet from the railroad track; that the deceased, a deaf and dumb boy, between 14 and 15 years of age, was with him, and was sent on an errand across the street, and across the railroad track. The plaintiff, when he sent his son across the street, did not look up and down the track to see if the car was approaching. If he had done so he would have seen the car in question. No obstruction prevented his view of the car. After the boy had started across the street, the plaintiff was busy, with his face turned in the opposite direction. The boy had proceeded but a short distance when the plaintiff's attention was attracted by the ringing of the bell on the street car. He looked up, and saw the car approaching, at a distance of about 39 feet from the place where the boy was. At the same time, the boy was about 20 feet from the place of the accident. He said at first he was not alarmed; that he did not think there was any danger; that, if the boy had had his hearing, the ringing of the bell would have attracted his attention, but when the boy had gotten within three or four feet of the track, and the car was then within a short distance, he then for the first time became alarmed. Plaintiff did not see the deceased look up or look in the direction of the approaching car. The motorman rang the bell three or four times, and then, finding it did not attract the attention of the boy, attempted to stop the car, but failed; and the car struck the boy, who died from the effect of the injuries. The car was 40 or 50 feet from the plaintiff at this time, and the boy was passing on north, towards the railroad track, seemingly intent on his errand, and without noticing the car. The car struck the boy as he passed over the north rail. The car passed on about 58 feet beyond where the boy was struck before it was stopped. The boy attended school, and could understand signs in writing. Plaintiff did not consider it as safe for the boy to be out as it would be if he could hear and speak. The boy had no other defect except that he was deaf and dumb. He was a well-grown boy, a little over the average size, and equaled the average of intelligence and quickness of comprehension as compared with children in the full possession of their faculties. He knew of the existence of street cars and lines. The motorman testified that the car was running at a rate of about 6 miles an hour; that he saw the boy coming north when about 20 feet from the track; that he put his foot on the gong, and turned off the power, intending to reverse the car; that, when he turned off the power, he had one hand on the brake, and received a shock from the motor that disabled him for a second; that the hind brake of the car was loose, and kicked off; that the brakes on the car were not in good condition; that the car had been disabled in a collision in March before the accident, and after that it could not be controlled by the brakes; that shocks from the brakes were frequent; that, when he turned off the power, he intended to reverse but for the shock he received; the car had been out of repair for a considerable length of time before the accident, and witness had reported it to the proper officer of defendant every time he used it for weeks prior to the accident; that the brakes would not stop the car; that he applied the brakes as soon as he saw the boy was likely to cross the track, and did all he could to warn the boy and stop the car, but could not stop it in time to save him; that the boy did not look up towards the car, but looked straight ahead; that, if the car had been in repair like other cars, he thought he could have stopped it, by reversing, in about 8 feet. Other witnesses testified that the motor was out of repair; that the axles were sprung; that the brakes would not work; and that motormen would frequently be shocked by electricity from the motor. Such reports came from the motormen to the night inspector very frequently before the accident. The defendant offered testimony tending to show that the car and brakes were in good condition at the time of the accident.

Affirmed.

Williams, Van Cott & Sutherland, for appellant.

We call attention to a few of the many adjudicated cases where under a state of facts similar to those in the case at bar a recovery was not permitted. Ehrishman v. City Ry. Co., 15 Pa. St. 180; Carson v. St. Ry. Co., 147 Pa. St. 219; Ward v. Electric Ry. Co., 17 N.Y.S. 427; Hamilton v. Third Ave. Ry. Co., 26 N.Y.S. 754; Davidson v. Denver Tramway Co., 25 P. 920; Kelley v. Hendries, 26 Mich. 255; Boerth v. West Side Ry. Co. (Wis.), 58 N.W. 376; Chicago Ry. Co. v. Burt, 69 Ill. 389; Philadelphia Ry. Co. v. Peebles, 67 F. 591; Booth on Street Railway Law, Sec. 5316; Thompson v. Street Ry. Co., 145 N.Y. 196; Buzby v. Phila. Traction Co., 126 Pa. St. 159.

In the case of a very young child, where it is not clear that he is of sufficient age and intelligence to understand and appreciate the danger, the question should be submitted to the jury, but where it is clear, as in this case, that plaintiff was of sufficient age and intelligence to understand such danger, he should be held responsible as a matter of law. Twist v. Ry. Co, 37 Am. and Eng. Ry. Cas. 336; Wendell v. Ry. Co., 91 N.Y. 420; Tucker v. Ry. Co., 124 N.Y. 308; Reynolds v. Ry. Co., 58 N.Y. 248; Masser v. Ry. Co., 68 Ia. 602; Rogers v. Lees (Pa.), 12 L. R. A. 216; Robinson v. Ry. Co., 7 Utah 493; Messenger v. Dennie, 50 Am. Rep. 295; Ecliff v. Ry. Co., 64 Mich. 196; Nagle v. Ry. Co., 32 Am. Rep. 413; Hays v. St. Ry. Co., 8 Am. St. Rep. 624; Beach Contr. Neg., p. 58 et seq.; Keefe v. Ry. Co., 54 Am. St. Rep. 542; Smith v. Ry. Co., 25 L. R. A. 287; Ry. Co. v. Moseley, 57 F. 921; Kirtley v. Ry. Co., 65 F. 386; Watson v. St. Ry. Co., 34 S.W. 573.

Richards & Richards, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J (after stating the facts):

The court submitted the question of the negligence of the defendant, the contributory negligence of the deceased, in connection with his age, capacity, and condition under the circumstances, and the condition of the car, to the jury. The court instructed the jury, among other things, that "even though you believed the son of the plaintiff was guilty of contributory negligence by crossing the track without observing whether or not the cars were running thereon and in operation, or by any other act, and that, if he had been free from such contributory negligence, the injury would not have occurred, yet if the motorman, after the act of contributory negligence complained of, had the opportunity, or could, by the use of reasonable care, had the brakes and motor of the car been in proper condition, have avoided the accident, then the act of said motorman, which is the act of defendant company, was the proximate cause of the injury complained of by the plaintiff." "If you believe from the evidence that the defendant company exercised due care and caution in operating the car at the time of the accident, and that the accident was not in any way the result of any defect in the appliances for controlling the car, then the defendant would not be liable." Exceptions were taken to these instructions. Appellant's counsel contend that conceding the fact that the defendant was negligent in sending out a defective car and that the deceased was also negligent in crossing the track in front of the car, in such a case it was the only duty of the defendant, after discovering the dangerous situation of the deceased, caused by his own negligence, to exercise all reasonable care and diligence at his command at the time of the injury, and that when the motorman did all he could to stop the car, although its brakes were defective, the defendant could not be held liable, even if the car had been sent out in a defective condition with the defendant's knowledge; that, as nothing could be done by the moterman after the discovery of the boy's negligence to remedy the defective condition of the car, all that he was required to do was to use the defective appliances which he had to stop the car; that, if the deceased was guilty of contributory negligence, the unsafe and defective condition of the car,...