Young v. Clark

• Decision Date: 09 October 1897
• Docket Number: 844
• Citation: 50 P. 832,16 Utah 42
• Court: Utah Supreme Court
• Parties: CHARLOTTA LOUISA YOUNG, RESPONDENT, v. S. H. H. CLARK ET AL., RECEIVERS, ETC., APPELLANTS

50 P. 832

16 Utah 42

CHARLOTTA LOUISA YOUNG, RESPONDENT, v. S. H. H. CLARK ET AL., RECEIVERS, ETC., APPELLANTS

No. 844

Supreme Court of Utah

October 9, 1897

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by Charlotta Louisa Young, an infant, by Nancy Martin, her guardian, against S. H. H. Clark and others, receivers. Judgment for plaintiff. Defendants appeal.

Affirmed.

Williams Van Cott & Sutherland, for appellants:

Plaintiff was a trespasser upon the bridge; knew and understood her danger and voluntarily incurred it. Defendants used every effort to prevent the injury as soon as her condition was discovered. She was herself guilty of contributory negligence. Mason v. Ry. Co., 27 Kan. 83; Tuenenbrock v. S. P. Ry. Co., 59 Cal. 269; Barker v. Ry. Co. (Mo.), 37 A. & E. Ry. Cas 292; Spicer v. Ry. Co., 34 W.Va. 574; Anderson v. Ry Co, 87 Wis. 195; Ward v. S. P. Ry. Co., 25 Or. 433; Toomey v. S. P. Ry. Co., 86 Cal. 374; Gaynor v. Ry. Co., 100 Mass. 214; State v. Ry. Co., 69 Md. 494; Ry. Co. v. Monday, 49 Ark. 257; Ry. Co. v. Black, 45 A. & E. Ry. Cas. 38; Masser v. Ry. Co., 68 Ia. 602; Ry. Co. v. Godfrey, 71 Ill. 500; Woodruff v. U. P. Ry. Co., 47 F. 689.

User of the bridge and track as a foot path by the people generally of the vicinity neither excuses plaintiff nor adds to the duties of the defendants. Ry. Co. v. Brinson, 10 Ga. 207; Sutton v. Ry. Co., 66 N.Y. 243; Ry. Co. v. State (Md.), 19 A. & E. Ry. C. 83 (87), and note; Ry. Co. v. Godfrey, 71 Ill. 506; Mason v. Ry. Co., supra; Gaynor v. Ry. Co., 100 Mass. 214; Grethen v. Ry. Co., 22 F. 609; Anderson v. Ry. Co., 87 Wis. 195.

The court should have held plaintiff responsible as a matter of law. Twist v. Ry. Co., 37 A. & E. Ry. C. 336; Wendell v. Ry. Co., 91 N.Y. 420; Tucket v. Ry. Co., 124 N.Y. 308; Reynolds v. Ry. Co., 58 N.Y. 248; Masser v. Ry. Co., 68 Ia. 602; Rodgers 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.

Richards & Macmillan and A. E. Pratt, for respondent.

Whether the plaintiff was sui juris and of an age and intelligence to be charged with full legal responsibility for her own negligence and fully understood her danger, were properly submitted to the jury. Jones on Evidence, sec. 98; Ry. Co. v. Gladman, 15 Wall. 401; Strawbridge et al. v. Bradford, 128 Pa. St. 200; Whalen v. Ry. Co., 75 Wis. 654; Ry. Co. v. Whipple, 39 Kan. 531; Kerr v. Fergue, 54 Ill. 482; Ry. Co. v. Becker, 76 Ill. 25; Benton v. Railroad Co., 55 Iowa 496; Ry. Co. v. Bohn, 27 Mich. 503, 513; Lovett v. Railroad Co., 9 Allen 557; Plumley v. Birge, 124 Mass. 57; Kunz v. City of Troy, 104 N.Y. 344; Railroad Co. v. Stout, 17 Wall. 657; Roth v. Union Depot Co., supra; Nav. Co. v. Hendrick, 1 Wash. 446; Mowery v. Ry. Co., 51 N.Y. 666; Morgan v. Ry. Co., 38 N.Y. 455; O'Mara v. Ry. Co., 38 N.Y. 455; Smith v. O'Connor, 48 Pa. 218; Railroad Co. v. McTighe, 46 Pa. 316; Huff v. Ames, supra; Baker v. Ry. Co., 68 Mich. 90.

The same rule was held to apply to a boy of 12 years old, killed while riding on a freight train in front of an engine, in Ecliff v. Ry. Co., 64 Mich. 196, and to another boy 12 years of age, in Williams v. Ry. Co., 96 Mo. 275, and to a boy 11 1/2 years old, Eswin v. Ry. Co., 96 Mo. 290. Parish v. Eden, 62 Wis. 272; Langhoff v. Ry. Co., 19 Wis. 489; Curry v. Ry. Co., 43 Wis. 685; Leavitt v. Ry. Co., 64 Wis. 228.

"The age and infancy of the plaintiff must be considered in such a case, even if he is of such an age as to be sui juris in respect to many other things." 2 Thompson on Negligence, 1180; Hemmingway v. Ry. Co., 72 Wis. 42.

It was not error to admit evidence that the bell was not rung nor the whistle sounded. 3 Jones on Evidence, sec. 899 and notes; Ry. Co. v. Morrison (Colo. 1893), 32 P. 859; Curr v. Hundley (Colo. 1893), 31 P. 940; Ferguson v. McBean (Cal.), 35 P. 561; Jory v. Sup. Council, etc. (Cal.), 38 P. 527; Chase v. Caryl (N. J. L.), 31 A. 1030, 1031; Tullidge v. Wade, 3 Wils. 18; Harford v. Wilson, 1 Taunt. 12; Doe v. Tyler, 6 Bing. 651; Prince v. Shepard, 9 Pick. 176; Myers v. Hollingsworth, 26 N. J. L. 186.

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

OPINION

MINER, J.:

This action was brought to recover damages for personal injuries claimed to have been sustained by plaintiff, a child 12 years old, by being run down and struck by a locomotive on a passenger train operated by defendant, in June, 1896, while plaintiff was crossing defendant's bridge spanning the Ogden river, situated a half mile north of the passenger depot in Ogden City. The evidence tends to show that for about 17 years the custom and practice existed for people residing on the north side of Ogden river, near the railroad, in Glascow addition, to use the defendant's bridge and railroad track as a footpath crossing to and from the city, for children attending school, and for other purposes, until from 50 to 200 persons would cross the bridge daily. About 5 o'clock p. m. of the day of the accident,--a clear day,--the plaintiff, who resided with her mother on the south side of the bridge, was sent on an errand to her grandmother, who resided in Glascow addition, and her brother, nine years of age, was sent with her. Upon reaching the south side of the bridge, the girl stopped, listening and looking both ways, to see if a train was coming, as she knew it was about time for the train, but, not hearing or seeing it, started north, crossing the railroad bridge. There was no hand rail, foot bridge, or planking on the bridge, except the ties to walk upon. The bridge was 134 feet long and 12 feet wide, with water running under it. When about half way across the bridge, or about 65 feet from the south end of it, the girl saw an engine with a train coming towards her from the north at the rate of about 30 miles an hour. From the point where the train rounded the curve to the bridge where the children stood there was a straight level track for a distance of about 2,200 feet. The bridge curved up, and was higher in the center than the track, and has a line of stringers higher than the bridge on the outside of the rails, bolted to the bridge. The children could plainly be discerned as the train rounded the curve, and from any point on the track between the curve and the bridge. Plaintiff's foot was large enough to span the distance between the ties. On discovering the engine, the children became frightened, and screamed, and commenced to run back off the bridge with their backs to the engine. In doing so, the little boy caught his foot in the ties. Plaintiff got him up, and ran a few steps further. Then plaintiff placed the boy on the end of a projecting beam of the bridge outside of the rails for safety, and she continued to run over the bridge away from the train. As she ran, she looked back three times, to watch the train, and fell each time, recovered herself, and ran again. When within 10 feet of the south end of the bridge, she slipped, fell, and was struck in the left side by the pilot of the engine, and, with face upward, was pushed along the track about 30 feet, until the train was stopped. She was seriously injured. Plaintiff knew trains passed over the bridge each way at all hours of the day and night. She had frequently crossed the bridge, and knew how long it took. She was familiar with the time the trains usually crossed the bridge. Plaintiff and her brother were on the bridge four or five minutes before the train struck her. Plaintiff's testimony tends to show that no bell was rung or whistle blown by the engineer. The engineer of defendant testified, in substance: That the train was running 30 or 35 miles an hour. That, as the train came around the curve, there were two men walking on the track towards the engine, whose presence intercepted his view of the bridge and track south. These persons were about half way between the curve in the road and the bridge,--about 1,000 feet east from the bridge. These men shortly stepped off the track, and when they did so he saw the children on the track, but could not tell at first whether they were on the bridge or not. He soon saw they were on the bridge, and that the girl was excited. When he saw the children, the engine was over 100 yards from the bridge. That as soon as he saw the children on the bridge he applied the air as quick as he could get hold of the lever, reversed the engine, and applied sand. Everything was done that could be done to stop the engine. That he must have run 100 yards after the air brakes were applied. The engine struck the girl, and pushed her along several feet. Thinks the train could be stopped, running as that was, in 600 feet. This train must have run nearly 2,000 feet before it stopped. The bell was rung and the whistle sounded. The fireman gave similar testimony, and stated that the engine could be stopped, running as fast as that one was, in about 100 or 125 yards, and that the engine was stopped as soon as it could be.

The defendant insists that the plaintiff was a trespasser upon the bridge, and knew of the danger which she voluntarily assumed, and was guilty of contributory negligence. For many years previous to the accident, the public, without any objection from the defendant or its officers, had used this bridge as a footpath in crossing the river from one part of a populous city to another, during all hours of the day and night. The train was running at the unusual rate of 30 or 35 miles an hour, within the limits of a populous city. The plaintiff was a child 12 years of age. The engineer saw the child on the bridge when from 1,000 to 2,000 feet away, and could have stopped the train, going at the rate of speed it was going, in from 400 to 600 feet. The defendant was not ignorant...