Williamson v. Salt Lake & Ogden R. Co.

• Decision Date: 16 April 1918
• Docket Number: 3150
• Parties: WILLIAMSON v. SALT LAKE & OGDEN R. CO
• Court: Utah Supreme Court

172 P. 680

52 Utah 84

WILLIAMSON v. SALT LAKE & OGDEN R. CO

No. 3150

Supreme Court of Utah

April 16, 1918

Appeal from District Court of Weber County, Second District; Hon. A E. Pratt, Judge.

Action by James Williamson against the Salt Lake & Ogden Railway Company.

Judgment for plaintiff. Defendant appeals.

REVERSED and remanded with directions to grant new trial.

Boyd De Vine & Eccles and Arthur Woolley for appellant.

Jno. G Willis for respondent.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

Plaintiff commenced this action on the 8th day of March, 1916, to recover damages for personal injuries which he alleged he received through the negligence of the defendant on June 14, 1912. In his complaint he alleges that he was injured while attempting to board one of defendant's passenger trains at Clinton, a station some distance south of Ogden City. The acts of negligence relied on are alleged as follows:

"That while plaintiff was such passenger, and in the act of boarding said train at said station of Clinton, and while he was upon the lower step of the rear platform of said car, the said car was, through the negligence of defendant, suddenly started and put into quick motion, without allowing plaintiff sufficient, or any, time to safely get upon said car; and in consequence thereof, and of the negligence of the servants of defendant conducting and operating said car, plaintiff was violently thrown against the rear end of the platform of said car, whereby he sustained great and permanent injuries, as follows: * * *"

The alleged injuries are then described, and plaintiff adds a prayer for judgment.

The defendant, upon the ground of want of knowledge or information, denied that plaintiff was a passenger on defendant's train; that he was injured as alleged, or at all. As an affirmative defense, defendant averred that, if plaintiff was injured as alleged, such injury was caused wholly and solely through his own negligence, etc.

Upon those issues the case was tried, and at the conclusion of the evidence the defendant requested the court to direct the jury to return a verdict in its favor for the reasons: (1) That the evidence is insufficient to justify a finding of negligence on the part of the defendant; (2) that the alleged injuries were caused through plaintiff's own negligence and want of ordinary care; and (3) that the evidence shows that the alleged injuries were caused by some cause other than the alleged accident.

The court refused to so charge, but submitted the cause to the jury upon the evidence, and six out of eight jurors impaneled returned a verdict in favor of the plaintiff. Judgment was duly entered upon the verdict, and the defendant appeals.

While many errors are assigned, yet counsel in their brief have argued but two.

Counsel insist that the court erred in refusing the request to direct a verdict in favor of the defendant for the reasons before stated. The plaintiff was the only witness produced who seemed to know anything concerning the happening of the accident. While the conductor and brakeman in charge of the train on the day of the alleged accident were called by the defendant, neither of them knew anything of the happening of the accident, and neither of them knew the plaintiff or that he was a passenger on the train at the time in question. No other witness was called who either saw or knew anything about the accident. The plaintiff, who was a plumber engaged in that work, in substance testified that at about twenty minutes before five o'clock on the afternoon of the 14th day of June, 1912, and while he was on the steps of one of the cars of defendant's train, and while attempting to board the train carrying his plumbing tools, the train was suddenly started and he was injured. In answer to his counsel's questions he described the accident as follows:

"Well, when the train came into the depot I was standing there and they stopped; and while I was in the act of getting on the train, I picked up my tools off the ground, put them on my shoulder, and put my gasoline furnace on my arm like that, and this hand grasped the-- Q. Which hand is that? A. Left hand grasped the handrail, and just as I was taking a step up--I had stepped up on the right foot first--and just as I was taking the step up, before my left foot got on the step, the car started off with a jerk."

The witness said he was thrown against a ledge at the end of the car, and that he thereby injured his hip, etc.

The plaintiff, although he alleged he was injured in the manner aforesaid on June 14, 1912, nevertheless made no claim of any kind against the railroad company until the 22d day of November, 1915, and thereafter brought this action as before stated.

Counsel insist that the evidence is insufficient to justify a finding of negligence on the part of the defendant. While it is true that the evidence of negligence in some respects is not strong, yet, in view of the high degree of care that a common carrier owes to his passenger, we are not prepared to say that there was no substantial evidence of negligence produced by the plaintiff. If there is any substantial evidence of negligence on the part of the defendant, and that such negligence was the proximate cause of the injury complained of, then the question is one of fact for the jury and not one of law for the court. While there are a number of circumstances in this case, which we need not pause to state here, from which the jury might have found the facts in favor of the defendant, yet the effect that should be given to such circumstances was purely a question to be determined by the jury. It follows, therefore, that the district court did not err in refusing to direct the jury to return a verdict for the defendant, and in submitting the case to the jury.

It is, however, also insisted that the court erred in charging the jury. The court charged the jury as follows:

"The mere fact, if you find it to be a fact, that plaintiff was injured at the time and place mentioned, does not justify an inference either that the plaintiff was negligent or the defendant was negligent; yet if you believe from a preponderance of the evidence that plaintiff boarded the car at Clinton, having a mileage ticket with which to pay his fare and intending to take passage therein, and while in the act of getting on the car he was injured by the sudden starting of the car, the sudden starting of the car under such circumstances raises an inference of negligence on the part of defendant, though not a conclusive one, and the law casts upon the defendant the burden of showing that such starting was not caused by the negligence of the defendant or its servants in control of the...