7 Utah 493 | Utah | 1891
This action is brought by the plaintiff to recover damages for the death of his son, aged between eleven
The complaint alleged that on October 11, 1890, the defendant left a hand-car upon one of the tracks of its road within the limits of Salt Lake City, and permitted it to remain there until the evening of October 12, without being in any way guarded or locked, and that on the last named date plaintiff’s son was attracted to the hand-car, and got on the same with other boys, aud while riding down a grade lost his balance, and fell from, the car and was killed. The answer of the defendant denied each and every allegation of the complaint.
The evidence showed that the defendant was constructing yards and side tracks near the north limits of Salt Lake City. That on Saturday, October 11, 1890, there was a Set of hands at work there, and that about noon of that day they quit work, and started back to the city on a hand-car; that on account of snow haviog fallen on the rails, and an- ascending grade, - they were unable to propel the car; that they set the car off the track, left it unlocked, and came back to the city on foot; that the car weighed between six and seven hundred pounds and required four men to lift it from the track; that at the point where they put the hand-car off the track the track is four or five feet above, the level of the' ground, and they placed it so that the edge of the car would be about six feet from the rail; that the place where they left the car is about a mile from the thickly settled portions of the city, and that there are no houses nearer than a quarter of a mile, and that the ground is swampy and wet, and is not used nor suitable for a play ground for children; that either that afternoon or on Sunday
Some of the plaintiff’s witnesses who were on the car' at the time of the accident testified that the deceased, jumped off, while others say they thought he lost his balance, and fell off. The ages of the boys, as far as it appears in the evidence, ranged from eleven to fifteen years. In the opinion of the witnesses the car was running at the time of the accident at. the rate of twenty-five miles an hour, and the distance within which they stopped it, according to the testimony, was from ten to. seventy-five feet from where the accident happened. James Morris, a witness for plaintiff, testified that he was fifteen years old; that he was one of the boys on the car when Robinson was killed; that after the . accident they took the car off the track, and left it where, the other boys told him they got it. He further testified that he, with other boys, had used the car before, with the permission of the “boss,” eight or ten times, when the men were there working; but the “boss” never gave, them permission to take the cars and ride on them when the men were not there.
The defendant contends that no negligence on its part was shown, and that the evidence is not sufficient to support the verdict. A hand-car, weighing six or seven hundred pounds, standing on the ground a quarter of a mile outside the settled limits of the city, is not of itself dangerous; and boys of sufficient age and strength to
The case of Railway Co. v. Stout, 17 Wall. 657, cited, by plaintiff, was a case where a turn-table was left unfastened, and a small child was injured while it was being turned around. The court charged the jury in that case that, “if the turn-table in question, in its construction and the manner in which it was left, was not dangerous in its nature, the defendants were not liable for negligence;'' and this instruction was approved by the Supreme Court of the United States. A machine, to be dangerous in and of itself, must be of such a character that it can only be handled with safety by persons of mature years and experience. But we think a commón-hand-car, standing on the ground beside a railroad track,