151 P. 76 | Utah | 1915
The plaintiff brought this action to recover damages for personal injuries which he alleged he suffered through the negligence of the defendant. The plaintiff, after stating that the defendant owned and operated an-electric street car system in Salt Lake City, in substance alleged that on the 3d day of March, 1914, while ‘'in the exercise of due care,” he was crossing the intersection of certain streets in Salt Lake City, the defendant carelessly and negligently operated a street car
In appellant’s brief counsel state the proposition submitted for decision thus:
“The action of the trial court in overruling the defendant’s motion for a nonsuit is the sole ground upon which this defendant relies for a reversal in this case. ’ ’
This requires us to state plaintiff’s evidence somewhat at length. So far as’possible, we shall follow appellant’s printed abstract of the evidence. We do this because, after examining the original bill of exceptions, we find that appellant’s counsel have fully and fairly abstracted the evidence upon which they rely for a. reversal. •
According to the printed abstract, plaintiff, in respect to the accident, testified in chief as follows:
“My name is Samuel Gibson. I am seventy-seven years old. My birthday is on June 18th. I was seventy-seven in June. I have lived in the city here for nine years now. I was in the city last March when this accident occurred. It occurred on the 3d
On cross-examination he said:
“I have been in Salt Lake about nine years. This injury happened on First South street, down on First South street and First West, and that is a distance of about three blocks from Main street. I know where Main street is. It is two blocks. And Main street is the principal business street in the city, and the place where I was injured was about two blocks from that street. * * * The day of the accident, I went across one track and went to cross the other, just
On re-direct he testified as follows :
“I didn’t hear the bell when I stopped, but just went to move, and I heard the bell. Then just turned around like that, and the car was right on me. I didn’t stop on the track no time hardly at all, come that quick, come right onto me. I just stopped there to see Mr. Powell, went down to that corner, or went up this sidewalk here. Just stopped to get my directions; that is just what I happened to stop. Just as quick as you could think. I heard that bell, but I could not get that way or get this way until it hit me. I started to go across this way to the coner. I saw Mr. Powell over there and started to go that way, and the bell come in that quick on me, and the car.”
Mr. Walls, on direct examination, testified as follows:
‘‘I remember that an accident occurred on the street car. I could not tell you what day it was; it was a long while since. I remember a man that got hurt with the car. This is the gentleman, Mr. Gibson, the plaintiff in the case. I could not tell you the time either. It was light. The sun hadn’t gone down. It was in the afternoon. I stood at the gate, and I saw that man same as he was paralyzed in my estimation, did not know whether to go across the track or stay back, and at last he made a motion to go across, and the car struck him. When I first saw the plaintiff, Mr. Gibson, he was going away
On cross-examination he testified as follows:
“I noticed the car running across the billboard, and I saw the car coming down. The billboards are on the corner, and all the view I got of the ear was from the time it passed the billboards until it got to the middle of the road. With that view of it I am able to judge the speed it was going. I judge it was going fourteen or fifteen miles an hour. Might have been more; might have been less. ’ ’
Mr. Powell, a witness for the plaintiff, testified on direct •examination as follows:
On cross-examination he testified:
"After I went ahead of him, I walked down across the street; that is, zigzag across. ■ Then it was I heard the sound of the gong, and I looked around and he was up and back. He had not stopped in the middle of the street car track to light his pipe. He had stopped up at the front of this, stopped at the brick, at the sidewalk. So I don’t know whether he stopped on the middle of the track or not. I walked down and heard the bell and looked around; he was up in the air.
Mr. J ewett, another witness called on behalf of the plaintiff, on direct examination testified as follows:
: ‘‘My name is A. K. Jewett. I reside in Salt Lake City. I am a conductor on the Denver & Rio Grande running out of Salt Lake. I have been railroading about twelve years in different branches, in the operating service; that is, either as conductor, brakeman, or similar work. I was in Salt Lake the day of the accident to Mr. Gibson. I saw the accident. I was going from my boarding house about two doors north of this corner where the accident happened, and as I turned the corner I observed the street ear coming at a fast rate of speed, and what attracted my attention first was the wheels sliding on the car. I being working on the railroad and familiar with the sliding of the wheel, that will attract our attention quicker than anything else. It was about two car lengths distant. Mr. Gibson started across the track, and I observed it was about a ear length from him when I heard the whistle and bell ring at the same time. He struck the old gentleman; knocked him, I should judge, about forty feet. When the car got stopped, it was about three or four car lengths by where they first struck the old gentleman. I think the bell started to ring or the gong sounded or the whistle blew about a car length from Mr. Gibson. I was looking at it and watching it. I do not know whether it rang before that or not. I didn’t hear it. If it had rung, I think I would have heard it. I didn’t hear it. I was looking at it in a position where I could hear if it did ring. When I say that the bell rang, or the gong sounded, that is the same thing. None of these noises were made until this time, so far as I heard. When I say a car length, I mean about the length of the street car, twenty-eight or thirty feet. When I say it was going fast, I mean from the rate of speed it was going, it was going about —- I am a train conductor and have been a brakeman for about eight years. All that time on railroad trains, and I had occasion to observe the speed of trains a
On cross-examination he further testified as follows:
‘ ‘ I think it was about 6:15 when this accident happened, around about that. Around, about six, anyhow. I had just come from my boarding house. I was on the west side of First West street, on the side towards the depot. I was going to the Colonial Hotel at that time. That is on the north side of First South street, about a block or a half a block from there. I was not with anybody at that time. The wheels sliding on the car was what first attracted my attention to Mr. Gibson. .Before that I had not been paying particular attention to the approaching car, or anything about it. When I heard the wheels sliding and looked up, I think the car was about the length of the car east of the crossing. That is where the side
We have given the testimony of the last witness practically in full, since he was in a position to observe the accident and apparently possessed the requisite knowledge and experience to state his observations intelligently and clearly. Besides, in view of his experience, his testimony respecting speed and movement of the car could have been regarded by the jury
It is contended that, in view of the foregoing evidence, plaintiff was guilty of negligence as matter of law, and hence the court erred in denying the motion for a nonsuit. The writer desires to state that at first blush he was impressed that, under plaintiff’s own admissions, he did not give the matter of the approaching street car any thought or attention, that he was guilty of negligence which
A traveler, under the law, however, is not required either to stop and listen, nor yet to specially look for an approaching car. He is bound to exercise ordinary care for his own safety in passing over a street car track, and whether
But let us assume that the plaintiff in this ease did not exercise that degree of care that he should have exercised, yet the defendant had no right, for that reason, to run him down, if, by the exercise of ordinary care, it could have avoided doing so after discovering either his listlessness or his peril. The evidence is such that the jury could have found that the motorman conducting the car in question could have seen, and therefore they had a right to infer that he
It is elementary that the negligence of either party, in the eye of the law, is operative only when it constitutes the proximate cause of the injury or damage complained of. If it is merely the remote cause, the law regards it as inoperative and of no consequence. Suppose it be conceded, therefore, that the plaintiff was negligent in crossing the street in the manner he did, yet the jury would have been
For the reasons stated, therefore, the judgment ought to be, and it accordingly is, affirmed, with costs.