Woods v. Southern Pac. Co.

• Decision Date: 23 June 1893
• Citation: 33 P. 628,9 Utah 146
• Court: Utah Supreme Court
• Parties: SARAH WOODS AND ANOTHER, RESPONDENTS, v. SOUTHERN PACIFIC COMPANY, APPELLANT

33 P. 628

9 Utah 146

SARAH WOODS AND ANOTHER, RESPONDENTS, v. SOUTHERN PACIFIC COMPANY, APPELLANT

Supreme Court of Utah

June 23, 1893

APPEAL from a judgment of the district court of the fourth district and from an order refusing a new trial. Hon. James A. Miner judge. The opinion states the facts.

Affirmed.

Messrs Marshall and Royle, for the appellant.

The following facts are uncontroverted: From Lake Station to Terrace was only about twenty-five miles. The train left Lake Station about 10 A. M. and arrived at Terrace about 1 P. M. Hall, Gaisford and Woods went out on the platform only a few minutes before the accident. The train was in town, houses were on both sides of the track, the train had slowed up to stop, and was only a hundred yards or so from the stopping place, and jumped the track at the switch, right in town. Woods would necessarily have been in full view of the citizens of Terrace. Neither Hall nor Gaisford, both of whom were within three feet of Woods, saw anything to indicate the justice of plaintiffs' claim.

Appellant takes the position that under all the circumstances the verdict is clearly and manifestly wrong, and in any event, the fact that plaintiffs' decedent was riding upon the platform without any necessity therefor was clearly contributory negligence, preventing a recovery. Railway Co. v. Jones, 95 U.S. 441; Gavet v. Railway Co., 16 Gray, 501; Clark v. Railway Co., 36 N.Y. 135; Conelly v. Ice Co., 114 N.Y. 104; Hickey v. Railway Co., 14 Allen, 429; Railway Co. v. Hoosey, 99 Pa. 492; Goodwin v. Railway Co., 84 Me. 203; Worthington v. Railway Co., 23 At. Rep. 590.

Messrs. Evans and Rogers, and Mr. A. G. Horn, for the respondent.

Section 2353; 2 Comp. Laws of 1888, provides that "In case any passenger shall be injured on the platform of any car, or on any baggage, wood, gravel or freight cars, in violation of the printed regulations of the company, posted up at the time, in a conspicuous place, inside of its passenger cars, then in the train, or in violation of verbal instructions given by an officer of the train, such company shall not be liable for said injury." This statute was not relied upon, and no proof was given thereunder by the railway company. Having failed to do so, our contention is that according to rules of the common law, and in the absence of any statute, it is not negligence per se to ride upon the platform of a moving car under the circumstances of this case.

Section 2352, 2 Comp. Laws of 1888, makes it a misdemeanor to place baggage, freight, merchandise or lumber cars, in the rear of passengers cars. Even conceding that the decedent was negligent, still if the defendant by using ordinary care and diligence could have avoided the injury, it was its duty so to do. Railway Co. v. Ives, 144 U.S. 408; Coasting Co. v. Tolsop, 139 U.S. 551; Donohue v. Railway Co., 91 Mo. 357; Railway Co. v. Patton, 31 Miss. 156; Deans v. Railway Co., 107 N.C. 686. But that it was not contributory negligence, we cite Bonner v. Glenn, 15 S.W. 572; Dewire v. R. R. Co., 148 Mass. 343; S.C. 19 N.E. 523; Zemp v. R. R. Co., 64 Am. Dec. 763; Sims v. R. R. Co., 27 Ind. 59; Goodrich v. R. R. Co., 29 Hun, 50; Nolan v. R. R. Co., 87 N.Y. 63; Collins v. R. R. Co., 12 Barb. 492; Werle v. R. R. Co., 98 N.Y. 650; Carroll v. R. R. Co., 1 Duer. 571; 13 & 15 St. Pass. Ry. v. Boudrou, 2 Am. & Eng. Ry. Cases, 30; Willis v. R. R. Co., 34 N.Y. 670; Wateman v. Vose, 43 Maine, 504; Dearing on Negligence, sec. 97; Gerstle v. U. P. R. R. Co., 23 Mo.App. 361; Mitchel v. R. R. Co., 25 P. Rep. 245.

It is the great weight of authority, that where a person injured has been guilty of negligence but that such negligence had no casual connection with the injury, or at least so remote a connection that in law it cannot be deemed so at all, then the person injured is entitled to recover against the person or company doing him the injury, provided he can establish negligence on their part. See note at foot of page 37, 2 Am. & Eng. Ry. Cases, citing numerous authorities.

SMITH, J. ZANE, C. J., and BARTCH, J., concurred.

OPINION

SMITH, J.

This is an appeal from a judgment and order denying a new trial, made in the fourth district court, in favor of plaintiffs, and against appellant. The judgment was for damages accruing to plaintiffs by reason of the death of George S. Woods, who, it is alleged by plaintiffs, was killed by the negligence of the defendant. Three specific acts of negligence on the part of defendant are alleged, all of which, it is claimed, contributed to the accident resulting in the death of Woods, to wit: (1) That defendant made up a train with a passenger car in front of a number of loaded freight cars; the passenger car being the one in which Woods, the deceased, was riding. (2) That defendant was using a track, switch and frog that were out of repair. (3) That defendant was using trucks and wheels under its locomotive that were out of repair. The defendant denied the negligence alleged, and affirmatively alleged that the deceased was guilty of contributory negligence, in this: That at the time of the accident the deceased was standing on the platform of the passenger car, which was a place of great and manifest danger, and that this act of deceased contributed to his injury.

The facts proven are substantially as follows: On the day of the accident, deceased was in the employ of defendant, as a carpenter, working at Lake Station, in Box Elder county; that he was accustomed to travel from point to point in a passenger car called the "Outfit Car." That defendant, in order to convey plaintiff and other workmen from Lake to Terrace, put this passenger car, with the workmen in it, in a freight train, within three or four cars of the engine, and with 18 to 20 freight cars in the rear of it. In this position the car was conveyed to Terrace. As the train was going into the switch at Terrace the trucks or wheels of the engine mounted the rail at the switch, derailing the train, and wrecking the car on which deceased was riding. Deceased was killed, and five or six others on the car more or less severely injured. The passenger car was broken in two, and was partially set on fire. The evidence also shows that the engine was derailed by reason of a defective switch, that was much worn, and the passenger car was crushed by reason of the momentum of the freight cars in its rear. The rear part of the train did not leave the track, and persons on that part of the train were not injured. It will thus be seen that the proof fully sustained the charge of negligence against defendant in the first and second of the particulars charged. This is practically conceded by counsel for defendant on this appeal. But the question that is urged upon our attention as ground for reversal is this: That the deceased was negligent in standing on the platform, and that this contributed to his injury, and that plaintiffs cannot, therefore, recover. The facts in relation to this claim appear by the record to be that, about five minutes before the accident, deceased was lying in his bunk in the car; that, from two to four minutes before the accident, deceased and two other men stepped out on the platform; that no person knew why deceased went out, or what he was doing; that, when the accident happened, deceased and one of the other men on the platform were thrown off, and one of them was thrown or jumped through the open door into the car; that the man thrown off with deceased was slightly hurt, and, of those in the car, some were seriously hurt, some slightly hurt, and one or two, perhaps, escaped without injury.

The appellant claims that in this state of the proof the court should have instructed the jury, as a matter of law, that deceased was guilty of contributory negligence, and that having failed to do this, the court should have set aside the verdict as unsupported by the evidence. A number of authorities are cited to sustain this position. We have examined these carefully, and they fail, in our opinion, to sustain the position assumed by appellant. The cases cited are as follows: Hickey v. Railway Co., 14 Allen 429. In this case a passenger went out of one car, onto the platform of the one next in the rear, where he stood,--the cars being uncoupled. The car in front was derailed. The one behind ran into it, and plaintiff's intestate was killed. It was held the plaintiff could not recover. This case is substantially overruled in Dewire v. Railway Co., 148 Mass. 343, 19 N.E. 523, 19 N.E. 523, which we will review further on. The case of Gavett v. Railway Co., 16 Gray 501, is as follows: Plaintiff undertook to step from a moving train to a station platform, and was thrown and injured. It was held she could not recover. This, it will be seen, is not in point in this case at all, as the act of plaintiff in stepping off the moving train was one that contributed to, and assisted to produce, the accident, and without which it could not have happened.

The case of Goodwin v. Railway Co., 84 Me. 203 24 A. 816, is cited. In that case, plaintiff's intestate was riding on the platform of a passenger car, which was running round a curve very rapidly, thereby causing the car to lurch; and the deceased fell off, and was killed. Here, again, it will...