167 P. 666 | Utah | 1917
The plaintiffs recovered judgment against the defendant for damages for the death of one Mary Eveline Kent, wife of the plaintiff Joseph B. Kent and mother of the other plaintiffs named in the caption. The defendant appeals from the judgment. The principal errors assigned are, that the evidence fails to show negligence on the part of the defendant, and that the evidence conclusively shows that the deceased was guilty of contributory negligence as a matter of law, and that therefore the court erred in refusing to sustain defendant’s motion for a nonsuit and also in refusing to direct a verdict for the defendant.
In the complaint it is in substance alleged that on the 27th day of October, 1915, about seven o’clock p. m., the deceased,
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The two curved parallel lines marked “R. R.” on the plat indicate the railway track. The space marked “H. W.” indicates the public highway which crosses the railway at a point commonly known as Anderson’s crossing. The lines marked “B” indicate an overhead bridge across the railway track which is about 800 feet south from the highway crossing. The point marked “A” on the plat on the highway east of the railway track indicates where the deceased was first seen by two witnesses who were on the train and who were leaning out of the west car window as the train passed the point marked “B” on the plat. The point marked “X” on the highway indicates the place where the deceased was standing when she was struck by the front end of the train, and the broken lines leading from point “A” to point “X” indicate the course the deceased followed in crossing the track and in then turning north to the point “X,” where, as before stated
The deceased lived at Logan, Utah, and she had once or twice before the day of the accident boarded one of its trains at the crossing in question, and was familiar with the surroundings. ■ On October 27, 1915, the evening in question, the train was due at the crossing going north at about 6 o’clock p. m. On that day the deceased visited her brother-in-law, who lived about three-quarters of a mile from the crossing in question, and who, at about 6 o’clock p. m., took her to the crossing in his buggy to meet the train. The train was late, however, and after waiting about three-quarters of an hour, he left the deceased there on the west side of the track and went home. The train arrived at the crossing at about 7 o’clock p. m., and was running at a speed variously estimated by the witnesses of from twenty-five to thirty-five miles an hour. It seems that the train operator did not intend to stop at the crossing on the evening in question.
“Q. What did you see that attracted your attention, if anything? A. Well, I didn’t see anything when I was right under the bridge. Q. As you came around it, what did you first notice? A. When we were turning the bend there was a light thrown around. I seen a lady there, standing there. She was right on the east side of the track, and the light struck her. She followed the light across the track. She got across the track all right. When she got on the west side of the track she was maybe right on the end of the ties right there, and she turned her head to the north. The light was facing her at the time the car hit her. Q. That is, she turned her face to the north? A. Yes, sir. Q. And her back to the south? A. Yes, sir. Q. You say that she was about at the end of the tie west of the west rail? A. Yes, sir. I think she was just about on the end of the tie, maybe standing right on the end of the tie, a little more out. * # * Q. I understood you to say when you first noticed her she was east of the track? A. Yes, sir. Q. And that she crossed over both rails and turned and looked north? A. Yes, sir. Q. Did you notice whether she was walking, started to walk after she had crossed the track? A. I believe that she either took one or two steps to the north. I think, as near as I could judge in the short time there was. Q. Then what did you notice? A. Why, I seen the car hit her. ’ ’
This witness also testified that when the deceased took one or two steps to the north the train was “twenty or thirty feet, something like that, as near as I could tell” from the deceased. The witness further testified:
“Why, I know that when she nearly got to the track she put her hand in the light. She put her left hand up. She was then on the east side of the east rail, and was walking'*337 west. She put it somewhere to her face or to her head. It was the hand nearest the train.”
It is not necessary to quote the testimony of the other eyewitness, for the reason that there is no conflict in the testimony of the two, and the testimony of the other merely corroborates the witness we have quoted in so far as he testified to the same matters. The other witness, however, said that when he saw the deceased “she was standing erect with her back to the car ’ ’; that is, the approaching train. He further said that at that moment:
“I thought she was away [from the track] far enough for the ear to miss her, but she happened to be close enough to be struck by the car.”
The testimony showed that • the deceased was forty-nine years of age, and was possessed of all her faculties.
There is no reversible error in the other assignment relating to the giving of instructions and in refusing the requests of the defendant. Nor did the court commit error in the admission of the evidence complained of.
For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Cache County, with directions to grant a new trial. Costs to appellant.