Wm. H. Pollett v. Denver & R. G. W. R. Co.

• Decision Date: 14 October 1933
• Docket Number: 5152,5151
• Citation: 25 P.2d 963,82 Utah 505
• Parties: WM. H. POLLETT v. DENVER & R. G. W. R. CO., and B. P. DELONG; A. E. POLLETT v. DENVER & R. G. W. R. CO
• Court: Utah Supreme Court

25 P.2d 963

82 Utah 505

WM. H. POLLETT v. DENVER & R. G. W. R. CO., and B. P. DELONG; A. E. POLLETT v. DENVER & R. G. W. R. CO

Nos. 5151, 5152

Supreme Court of Utah

October 14, 1933

Appeal from District Court, Sixth District, Sevier County; J. H Wolfe, Judge.

Actions by William H. Pollett, a minor, by A. E. Pollett, his guardian ad litem, and by A. E. Pollett, individually against the Denver & Rio Grande Western Railroad Company. Judgment for defendant, and plaintiffs appeal.

AFFIRMED.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, and Sterling K. Heppler, of Richfield, for appellants.

Van Cott, Riter & Farnsworth, of Salt Lake City, for respondent.

STRAUP Chief Justice. ELIAS HANSEN, FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

STRAUP, Chief Justice.

Two actions were brought against the railroad company arising out of the same transaction; one by W. H. Pollett, a minor, for personal injuries, the other by the father, A. E. Pollett, for damages to a truck owned by him and driven by the minor at the time of the accident, which injury and damage were alleged to have resulted through the negligent operation of an engine and coach by the company at its depot and grounds at Richfield, Utah. The two cases were consolidated and tried together. At the conclusion of the evidence adduced on behalf of the plaintiffs and of the company, the court on the request of the latter directed a verdict in its favor and against both plaintiffs, no cause of action. Both plaintiffs separately appeal. The two appeals are submitted on a combined transcript of the record on appeal. The assignments challenge the rulings directing the verdict. While the appellants' brief as one brief is designated as a brief in both cases, yet it is devoted chiefly, if not entirely, to the cause of the minor, who was about 15 years of age at the time of the accident. In other words, the case is presented on the theory that if the verdict was properly directed in the minor's cause, it also was properly directed in the father's. We will so consider the matter.

The company at Richfield owns and maintains a depot and surrounding grounds. The depot or building extending substantially north and south is about 70 feet long and about 25 feet wide. The north portion of the building is used as a warehouse. The main railroad track is immediately east of the building and also extends in a northerly and southerly direction. Between such track and the building is a platform about 15 feet wide extending from the building to the railroad track, which platform extends about 60 feet north of the building and about 20 feet south of it. There is also a raised platform about 10 feet wide at the north end of the building. On the west side of the building is what is called a house track extending in a northerly and southerly direction, and west of that track a side track extending in the same direction. About 70 feet north of the depot or building and on the company's premises are two plank crossings, each 16 to 18 feet long, put there and maintained by the company; one a crossing over the main track, and the other over the house track. A short distance south of the building are two other plank crossings, also put there and maintained by the company; one over the main track and the other over the house track, and still other plank crossings farther to the south. The depot is located near the intersection of two streets of the city. Leading from the intersection and over grounds and premises of the company is a driveway in a northerly direction west of the building and between the house track and the side track, then easterly over the plank crossings north of the building, thence southerly and east of and near the main track to the plank crossing south of the building, all on grounds and premises of the company used as a part of its depot and station. About 120 feet south of the building and near the west side of the main track the company also maintained a water tank to supply engines with water.

The father, A. E. Pollett, was and for some years had been engaged in the express business, hauling trunks, baggage, and merchandise to and from the depot for passengers and shippers over the company's railroad, and carrying mail to and from the station. In doing that, his son at intervals assisted him. Both for years were familiar with the conditions and surroundings of the depot and premises, and with the operation of trains and cars at and about the depot grounds. On the afternoon of the day in question in November, a clear and quiet day, the father, accompanied by his son, with an automobile truck, took a trunk to the depot to be shipped to Nevada. In going to the depot they drove along the driveway west of the depot and between the house and side tracks, and over the plank crossing of the house track, backed up at the north end of the depot, the warehouse portion, and unloaded the trunk. After attending to that, the father directed the son to drive the truck to a building of an oil company, located about 140 feet southeasterly of the building or depot and about 60 feet east of the main track, to get barrels or drums to be brought to the depot or warehouse for shipping, the father stating he would walk to the oil building, while the boy drove around. Where the truck stood at the north end of the building and where the boy was his view to the south, because of the building, was obstructed. When he started up with the truck he testified he looked around but could not see far to the south, and drove in a northerly direction along the extended platform, intending to cross the main track easterly at the plank crossing about 70 feet north of the building, then southerly to the building of the oil company, which, as the boy testified to, was the usual and customary way of travel. The boy's movements as he started up and drove along are perhaps best described by himself. On direct examination he in substance testified:

"When we came out of the warehouse, my father told me to drive to the Shell Oil and he would walk over. We were going to get some oil drums. I was standing on the platform, and I looked around and got into the truck. I was standing on that part of the platform called the ramp, on the elevated part of the platform. I couldn't see very far along the main line because of the depot. There was nothing in sight at that time. I also looked up the track towards the north, then I got into the truck and started the motor. I heard nothing of any bell or of any whistle, and I didn't know that there was any engine or tender or caboose on the track, nor any by the water tank. I started north in low gear and then made the turn to go east to cross over the crossing. As I was going northerly, I was looking ahead, and as I proceeded east I was looking back to make sure that I would not hit the corner of the platform; that is, the platform that is practically level with the track. I was looking at the northwest corner of this platform, which is practically on a level with the track. It is possibly a foot and a half above the ground. Then I proceeded up towards the crossing.

"I did not hear any bell or any whistle of any kind, and if any bell had been ringing or whistle blowing I think I would have heard it. I had not seen any part of the train up to the time it hit me. I was driving in low gear, going possibly 4 miles an hour. When I was on the crossing I felt, something hit me, and when I crawled out I could see it was the train. I recall that the truck was shoved down the track. When the train stopped I was between the rails underneath the wreckage of the truck."

On cross-examination he testified:

"I had been going down to the railroad station with my father for about three years prior to this accident, and I had been helping him in running this express business. When school wasn't on I would help him the entire day. I was familiar with the depot and with all of the crossings, and I had been there frequently. My father would get express at the depot. He would also get the mail. I had driven the truck or some automobile occasionally for two or three years, but it had always been in the presence of my father. Just before I got into the truck I was standing at the place where you have marked the cross on the ramp, a little bit northerly and westerly from the place indicated 'guy pole' and it was from there that I looked around before I got into the truck. I was looking to see if there was any train. I knew that the beet run was on and that it might move along the track.

"A great deal of the track south of me was obscured by the depot, and I knew that the beet train might be on that track where I could not see it. If I had walked over to the east edge of the elevated platform and looked to the south and to the north I could have seen along the track a long distance.

"After I got into the truck I looked north to see if a train was coming. After the truck started moving I was watching the road in front of me. I had to watch the corner to see if I could make the turn. I went about 60 feet before making the turn. I did not look to the south. I could not have done so while the car was going. I could have turned my head and looked through the rear window. After the truck got straightened out, after making the turn I was not over 10 feet from the crossing. I did not look south at that time. I did not stop the truck at any time. I could have stopped and looked south if I had felt inclined. I had not seen the beet train equipment at the water tank that day, nor any other day that year. I had seen it other years. At the speed I was going I could stop within two or three feet. I think the left window of the truck was open and the right one closed. The truck was making...