Wilson v. Southern Pac. Co.

• Decision Date: 16 April 1896
• Docket Number: 652
• Citation: 13 Utah 352,44 P. 1040
• Court: Utah Supreme Court
• Parties: C. C. WILSON, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

44 P. 1040

13 Utah 352

C. C. WILSON, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, APPELLANT

No. 652

Supreme Court of Utah

April 16, 1896

Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.

Action by Charles C. Wilson against the Southern Pacific Company for damages sustained by a collision between defendant's train and a wagon in which plaintiff was riding. From a judgment for plaintiff and from an order denying a new trial defendant appeals.

Affirmed.

Marshall & Rayle, for appellant.

In Louisville & N. R. Co. v. Richards, (13 So. 944), the supreme court of Alabama held that one who undertakes to cross a railroad track without looking for approaching danger from a train, is guilty of such negligence as will prevent recovery for his death from being struck by a train, backing at the rate of three to six miles an hour, where there was no wanton or reckless negligence of the railroad company.

In Buelow v. Chicago, St. P., etc., Ry. Co. (60 N.W. 617) the supreme court of Iowa held that a person attempting to cross a track without looking, who is struck by cars making a running switch, is guilty of contributory negligence.

In Mehegan v. N.Y. C. & H. R. R. Co. (19 N.Y.S. 444) it is held that one who attempts to cross a railroad track in the rear of a switching train momentarily stopped, without looking, where it is evident to any one looking that it will be immediately set in motion, is guilty of conributory negligence which will prevent recovery for his death caused by the train backing against him.

In Kennedy v. Chicago & N. W. Ry. Co. (68 Iowa 599) it was held that one acquainted with the situation and movement of trains at the locality of the injury, and who knows that a train is likely to back, who starts with his team across the track, as soon as the crossing is clear by the train's forward movement, and is struck by the backing train, is guilty of contributory negligence, precluding his recovery for the injury.

In Austin v. Chicago, R. I., etc., R. R. Co. (91 Ill. 135) it was held that one who was well acquainted with the locality where yard engines were employed, who passed over one track, to avoid an approaching train, and passed on to a side track without looking, when he was struck by a yard engine, was guilty of contributory negligence.

In Lake Shore & Mich. Southern Ry. Co. v. Clemens (5 Ill.App. 77 it was held that a party who was very familiar with a crossing, and with the movement of cars thereat, who attempted to drive between the parts of a train which had opened to allow teams to cross, and was injured by the slack of the train, which caught and pushed his wagon, was guilty of contributory negligence, and could not recover for his injuries.

It is always the duty of a traveler at a crossing to use ordinary care and make vigilant use of his senses to avoid impending danger, and he is not excused therefrom by any irregularity in the running of trains. See cases before cited, and also the following: Salter v. R. R. Co., 75 N.Y. 273; Mitchell v. R. R. Co., 64 N.Y. 655; Gorton v Erie Ry. Co., 45 N.Y. 660; Connelly v. R. R. Co., 88 N.Y. 346; Pepper v. S. P. Co., 105 Cal. 400; Chicago, etc, R. R. v. Jacobs, 63 Ill. 178; Maryland, etc., R. R. Co. v. Neubeuer, 62 Md. 391; Pennsylvania R. R, Co. v. Rathgeb, 32 O. St. 494; B. & O. R. R. Co. v. Whitacre, 35 O. St. 627; Pennsylvania R. R. Co. v. Sinclair, 62 Ind. 301; Terre Haute, etc., R. R. Co. v. Clark, 73 Ind. 163; McCrory v. Chicago, etc., R. R. Co., 31 F. 531-2; Haines v. Illinois Central, R. R. Co., 41 Iowa 227; Harris v. Minneapolis, etc., R. R. Co, 33 N.W. 122; Mynning v. Detroit, etc., R. R. Co., 31 N.W. 147; Toledo, etc., R. R. Co. v. Schuckman, 50 Ind. 42; St. Louis R. R. Co. v. Matthies, 50 Ind. 65; Schofield v. Chicago, etc., R. R., 2 McCrary 268; Hearne v. S. P. R. R. Co., 50 Cal. 482; Fleming v. W. P. R. R. Co., 49 Cal. 253; Zeigler v. Railroad, 5 S.C. 221; Chicago, etc., R. R. Co. v. Bert, 69 Ill. 388; Chase v. Maine Central R. R. Co., 78 Me. 349; Lesan v. Maine Central R. R. Co., 77 Me. 85; Schaeffert v. Chicago, etc., R. R. Co., 62 Iowa 624; Hickson v. St. Louis, etc., R. R. Co., 80 Mo. 335; Pennsylvania R. R. Co. v. Righter, 42 N. J. L. 180; Chicago, etc., R. R. Co. v. Robinson, 8 Ill.App. 140; Pennsylvania R. R. Co. v. Beale, 73 Pa. St. 814; Reading, etc., R. R. Co. v. Richie, 102 Pa. St. 425.

Where there is controversy, or conflicting evidence as to whether plaintiff could have avoided the injury by the use of ordinary care, instructions, objected to, which ignore the question of contributory negligence of the plaintiff, are ground for a new trial. Chicago, etc., R. R. Co. v. Housh, 12 Ill.App. 38; Georgia, R. R. Co. v. Thomas, 68 Ga. 744; Indianapolis, etc., R. R. Co. v. Willisch, 8 Ill.App. 242; St. Louis, etc., Ry. Co. v. Fullerton, 45 Ill.App. 618; McKenna v. M. P. R. Co., 54 Mo.App. 161; Baltimore Traction Co. v. Ringgold. 28 A. 397; Lake Erie, etc., R. Co., 26 Ill.App. 632; Guenther v. St. Louis, etc., Ry. Co., 95 Mo. 371; Gamble v. Mullin, 74 Iowa 99; Sohwenk v. Kehler, 122 Pa. 67.

In an action for an injury, any subsequent narrative of the event, or expression of opinion as to how it occurred, or as to the cause of it, though made shortly after its occurrence, is heresay and inadmissible. Adams v. Hannibal, etc., R. Co., 74 Mo. 553; Missouri P. R. Co. v. Iry, 71 Tex. 409; Lubin v. Hudson River R. R. Co., 17 N.Y. 131, 133; Vassar v. Knickerbooker Ice Co., 28 Jones & S. 113; 17 N.Y.S. 182; DeSoucy v. Manhattan R. Co., 15 N.Y.S. 108; Stone v. Poland, 58 Hun. 21; Tennis v. Interstate, etc., Ry. Co., 45 Kan. 503; Alabama G. S. R. Co. v. Hawk, 72 Ala. 112; Durkee v. Central Pac. R. R. Co., 69 Cal. 533; Beasley v. S. J. Fruit Packing Co., 92 Cal. 388, 392; St. Louis, etc., Ry. Co. v. Sweet, 57 Ark. 27; St. Louis, etc., Ry. Co. v. Kelly, 31 S.W. 884; Ohio & M. R. Co. v. Stein, 133 Ind. 243; Williams v. Cambridge R. R. Co, 144 Mass. 148; Tyler v. Old Colony R. R. Co., 157 Mass. 336; Mobile & O. R. R. Co. v. Klein, 43 Ill.App. 63; Hellmuth v. Katschike, 35 Ill.App. 21; T. & H. Pueblo Bldg. v. Klein, 38 P. 608; Howard v. Savannah, etc., R. Co., 84 Ga. 711; Roach v. Western & A. R. Co., 93 Ga. 785; Citizens St. R. Co. v. Stoddard, 37 N.E. 723; Ft. Smith Oil Co. v. Slover, 58 Ark. 168; Smith v. St. Louis, etc., R. R. Co., 91 Mo. 58; Vicksburg & M. R. R. Co. v. O'Brien, 191 U.S. 99; East Tenn., etc., R. R. Co. v. Maloy, 77 Ga. 237; Neuromi v. Ga. R. R. Co., 66 Ga. 57; Dodge v. Childs, 38 Kan. 526; Walderle v. N.Y. Central, etc., R. R. Co., 95 N.Y. 274; Martin v. N.Y., etc., R. R. Co., 103 N.Y. 626; Kelley v. Chicago, etc., R. R. Co., 88 Mo. 534; Sullivan v. Oregon, etc., Now. Co., 12 Or. 395.

The court erred in excluding proof, as to whether injury was caused to any one remaining in the wagon by the collision complained of.

It is permissible to show that another person similarly situated with the plaintiff was not injured by the accident complained of. Levy v. Campbell, 20 S.W. 196.

Evans & Rogers and A. G. Horn, for respondent.

ZANE, C. J. MINER, J., concurs. BARTCH, J., dissents.

OPINION

ZANE, C. J.

This action was instituted to recover damages in consequence of an injury caused, as alleged, by the negligence of the defendant in controlling a train upon its railway at the point where it crosses Twenty-Fourth street in Ogden City. The case was submitted to a jury, who returned a verdict of $ 2,065 for the plaintiff. The defendant excepted to the judgment of the court upon the verdict, and to the order refusing a new trial, and appealed to this court, and assigns the same as error. The plaintiff claims that the evidence shows that defendant's negligence caused the injury. This claim the defendant denies, and it alleges that the injury was caused by plaintiff's negligence. It appears that the defendant had a switch at the crossing, and three parallel tracks running east and west across the street at right angles; that plaintiff was riding east upon the street, with one Fielding, his neighbor, who was driving: that Fielding stopped his team before reaching the west track, upon seeing a train consisting of 14 or 15 cars with an engine attached to the south end standing on the east track across the street, and that the train then moved north; that Fielding then drove across the west track, when the train moved back across the street, and he stopped again; the train then moved north, and Fielding started his team again; that the train then moved south across the street again, the north car clearing the street about a rod and a half. At this point an important conflict in the evidence is found. The plaintiff and Fielding testified that Dalton, the switchman, signaled, looking in the direction of the engineer, and then turned, and said to Fielding, "Come on"; while Dalton testified that he said to plaintiff, who asked him if they could cross: "No; hold on. The slack of the cars will strike you." It further appears that Fielding started his team across the track immediately after the switchman spoke, and the train came back north; that Fielding tried to rein his horses off the track, and his wagon locked, and the cars struck the wheel, and shoved it from 20 to 25 feet, and then suddenly pulled south again; that the car caught in the harness, and pulled the horses and wagon back 2 or 3 rods, when the harness broke; that when the wagon and team were being pushed, the plaintiff jumped out, and struck his shoulder against the wagon, and severely bruised it. It also appears that the plaintiff was well acquainted with the switchman, and after he got up he walked a few steps to where he was standing by his switch. The plaintiff testified that he then said, "Dal, who is to blame for this?" and that the...