90 P. 402 | Utah | 1907
Plaintiff brought this action to recover damages for the death of her intestate, alleged to have been caused through the negligence of the defendant. The accident occurred at Salt Lake City, between First North and North Temple streets, in the railroad yard of the Oregon Short Line Railroad Company, along and over the tracks of which the defendant operated its cars. The yard and tracks were not inclosed, and extended in a southeasterly and northwesterly direction for several blocks, and had been traveled by numerous persons in going to and from their work, and had been generally used and traveled by men, women, and children as a thoroughfare, for eight years or more without pbjection. While they Avere so being used, the employees of the defendant were there and knew of such use without making any objection thereto. At the comer of First North and Fourth West streets there was a sign which read that the tracks were railroad property, and trespassers were warned to keep off, but, notwithstanding the sign, the tracks and yard were continued to be used by the public generally as a thoroughfare without hindrance or objection. The tracks and yard were along thickly settled portions of the city. At about 1:40 a. m. of the 10th day of October, 1905, the deceased, who lived on First North street and west of the yard, in going toward his place of work, at a store in the business portion of the city, was walking in the yard with a companion in a southerly direction between two parallel tracks, about thirteen feet apart. While the deceased was so walking along in the yard between First North and North Temple streets, the defendant, engaged in switching cars in the yard, operated a train of cars, consisting of an engine, tender, mail car, and baggage car, in a northerly direction, and on what is called the “main” track, which lay to the west of where the deceased was walking. The train was operated past him and beyond a switch, some little distance to the north of the deceased. It was then backed and moved in a southerly direction at a speed of from three to five miles an hour, and was switched from the main track to a track immediately to the east of it. ' The evidence is not
During the trial the plaintiff called a witness, a Mr. Eeid, who, after he had testified that he was walking in the yard about fifty feet from the accident and had seen the train approaching before it struck the deceased, was asked: “Well, now then, at any time within a minute or two before you saw this train approaching North Temple street [which was about fifty feet from the place of the accident] did you hear any whistle sounded?” This was objected to as being irrele vant, immaterial, nd incompetent, and particularly for the reason that whistles and signals are intended for the use and benefit of people making a legitimate use of the highway, and not for people who are off the highway and on property
The ruling of the court directing a verdict in favor of the defendant is not assigned as error. The errors assigned relate to the rulings excluding the testimony of witnesses Reid and Ganzer. The .fact sought to be shown by the witness Reid had already been shown by four or five witnesses. Assuming that it was competent and material to show the fail ure to give such warnings, proof of such fact was sufficiently made, without the testimony of Reid, to entitle the plaintiff to go to the jury on such question. It is not made to appear that the plaintiff was prejudiced because she was not permitted to show the failure to give the warnings by this particular witness. If the ruling of the court directing a verdict was right notwithtsanding four or five witnesses testified that no bell was rung or whistle blown, it still would have been right had the witness Reid been permitted to testify to the same fact. It is manifest that it was not the ruling upon
Tbe next ruling complained'of is that tbe plaintiff was not permitted to show that tbe train could bave been stopped within' fifteen or twenty feet after tbe deceased was discovered on tbe track by tbe brakeman, and after be was struck by tbe moving train. Tbis evidence was offered, as stated by plaintiff’s counsel, in support of tbe theory, based on tbe last clear chance doctrine. Tbis assignment rests upon a foundation different from tbe other. Tbe showing of tbis fact was essential in support of tbe theory. Without it, tbe evidence would be insufficient to support it. Its absence necessarily leads to a direction of a verdict for tbe defendant, if plaintiff’s case depended upon tbe doctrine for a cause of action. If erroneous, tbe ruling was therefore prejudicial. Tbis is not so because tbe proffered testimony was within itself sufficient to entitle tbe plaintiff to go to tbe jury, but because it was a material and essential element required to be- shown, in proving that tbe defendant bad tbe last clear chance to avoid tbe consequences of tbe deceased’s negligence. We therefore pass to a consideration of tbe ruling excluding tbis evidence.
Tbe ruling seems to bave been made on tbe theory that tbe deceased was a trespasser, and that tbe train operatives owed him no duty until be was discovered in a position of peril, and then only owed him the duty not to inflict a willful or wanton injury upon him; and therefore tbe engineer owed no duty of lookout, nor to stop tbe train, until be bad knowledge of tbe peril. It undoubtedly is the general rule that train operatives owe no duty of lookout to discover a trespasser upon tbe track, and to sucb a one owe no duty until be is discovered in a position of danger. But tbe authorities
The foregoing, of course, are not all the cases or authorities holding such doctrine, but they well illustrate the views taken by some able courts. But this court is committed to a contrary doctrine. In the case of Young v. Clark, 16 Utah 42, 50 Pac. 832, it was said:
“Where the public in considerable numbers have been accustomed for a great length of time to use a bridge or railroad track as a footpath in populous cities or thickly settled communities, -without molestation or objection from the company, and by reason of such general custom the presence of people upon such track or bridge is probable, or*286 might reasonably be anticipated', those in control of passing trains are bound to use reasonable diligence and precaution to prevent injury to those who might be thereon, even though they were trespassers. . . . We are of the opinion that when the community, situated as this was with reference to the bridge, have for seventeen years been accustomed to use the bridge as a footpath, without objection, the company is chargeable with notice of such usage and owes a duty to use reasonable care to prevent injury to persons that are liable to be crossing the same, even though they do so without authority.”
In the case of Corbett v. Oregon Short Line R. Co., 25 Utah 449, 71 Pac. 1065, the trial court refused to charge, though the defendant was negligent in the operation of the engine which caused the injury, yet, if the jury found that the parents of the deceased child were guilty of negligence in permitting it to go unattended upon the railroad track, and that such negligence contributed to the injury complained of, it barred recovery, “unless you further find from the evidence that notwithstanding such negligence of the parents or either of them the defendant’s servants, by the exercise of ordinary care, might have avoided the accident after in fact discovering the child’s peril.” This court held that it was not error to refuse the request, for this, among other, reasons:
“That it does not correctly state the law as applied to the evidencei of this case, in that it assumes that the defendant was under no obligation to anticipate persons being upon the track at this point. With an unfenced track bordered by habitations on each side, and used quite generally as a highway for both grown people and children, surely some diligence was required by defendant other than ‘after in fact discovering the child’s peril.’ . . . The instruction asked by the' defendant ignored entirely the fact whether the use of the track for foot passengers was not such as to render it probable, or reasonably to be expected, that people would be upon the track at this point.”
The rule is well stated by the court in the case of Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361, where it is said:
“At the conclusion of plaintiff’s evidence, and without the production of any evidence on the part of the defendant, the court directed a verdict in favor of the defendant, which is the error complained of. This instruction was doubtless given on the theory that the child was a trespasser on the track of the railway company; that the engineer of the train, and other train operatives, on that account, owed the child no dpty until they saw it; and that they were under no obligation to*287 anticipate its presence on the track, or to be on'the lookout either for it or other persons at the place where it was run over and killed. There are some adjudged cases which doubtless support such a view, but we are persuaded that it is not a correct rule, as applied to those portions of a railroad track which many people have been in the habit of using as a footpath for a considerable period, without objection on the part of the railway company, although without any express license to do so. Train operatives ought to be required to take notice of such usages and of conditions which actually exist, and to regulate their actions accordingly. A proper regard for the safety of persons and properly intrusted to their charge, and in human life in general, should impel them to do so. When, therefore, for a considerable period numerous persons have been accustomed to walk across a railroad track or along a railroad track between given points, either for business or pleasure, railroad engineers should take notice of such practice, and, when approaching such places, should be required to exercise reasonable precaution to prevent injury to them. Knowing the usage which prevails, they may reasonably be required to anticipate the probable presence of persons on or near the track at such places, and to be on the lookout .when their attention is not directed to the performance of their other duties.”
It was there held that, under the circumstances of the case, it was necessary for the jury to determine whether the engineer and fireman did in fact exercise ordinary care to discover the child. In the case of Crawford v. Southern Pacific Ry. Co., 106 Ga. 870, 33 S. E. 826, it was observed:
“Admitting, for the sake of the argument that the general rule is that a railroad company owes no duty to a trespasser who is upon or dangerously near its track in front of a moving train, until its servants have discovered its presence there, and therefore, so far as his safety is concerned, is not obliged to maintain a lookout in the direction in which the train is moving, we do not think that this could properly be held to be a uniform, fixed, and invariable rule, applicable alike to all eases and under all circumstances. Conduct which might, under one set of circumstances, show that all ordinary and reasonable care and diligence had been observed, might, under a different set of circumstances, be insufficient to show an observance of such care and diligence. We think that such a rule could mean no more than this: Taking the locality where the train is running and all the surrounding circumstances, if those in control of the movement of the train have no reason to apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who in fact may be there, until they have actually discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to apprehend that the track in front of the locomotive may not be clear*288 of human beings, then, it seems to us, it is the duty of the employees of the company to keep a lookout ahead of the train, most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving.”
In Shearman & Eedfield on Negligence (5th Ed.), section 484, the rule is stated as follows:
“The defendant is responsible, not only for what he actually knows, hut for that which he is bound to know. It is clear that the frequent statements that contributory negligence is an absolute bar to recovery, except where the defendant’s conduct has been ‘reckless,’ ‘willful,’ or ‘wanton,’ or even grossly negligent, are not sound. No courts have in actual practice adhered to this imaginary rule. It has been explicitly overruled, and, indeed, it has been explained away or disavowed by courts which had previously stated it. Nothing more is really meant by the courts using these phrases than a want of ordinary care, after becoming actually aware of the plaintiff’s peril. But it is much better to say so. The more frequent declaration that the defendant is not liable, unless he actually sees or knows the plaintiff’s peril, are, however, equally erroneous, as too broad statements of abstract law, however proper they may have been with reference to the particular case under consideration. The rule that a plaintiff is as matter of law negligent if he fails to see what he was bound to look for and ought to have seen is rigidly enforced; and-the same rule must, in common justice, be applied to the defendant. And, in fact it actually is in almost .every court where the question is squarely presented. Trainmen may justly assume that travelers will comply with the law in accordance with the general rule upon that point; but if observation has convinced them that, at cei’tain times and places, this assumption is not borne out by the facts, they are not justified in acting upon it. Therefore, while trainmen are not usually bound to foresee or watch for the wrongful presence of any person upon the track, even where it is open to an adjoining highway, nor to foresee the wrongful entry of persons upon the cars, yet, if experience has shown that at certain points persons are constantly thus entering upon the track or the cars such persons, if injured as the proximate result of the trainmen’s failure to use ordinary care to keep watch for them, may recover damages if the trainmen could have seen them without difficulty, had they kept a reasonble watch, even though, in fact, they did not see them. Especially should this rule be applied where the railroad company has acquiesced in the use thus made of its property.” To the same effect are the following: Bullard v. So. Ry., 116 Ga. 644, 43 S. E., 39; Chamberlain v. Mo. Pac. Ry. Co., 133 Mo. 587, 33 S. W. 437, 34 S. W. 842; Morgan v. Wabash, R. Co., 159 Mo. 262, 60 S. W. 195; Va. Mid. R. R. Co. v. White, 84 Va. 498, 5 S. E. 573, 10 Am. St. Rep. 874; Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507; Cassida*289 v. Or. R. & N. Co., 14 Or. 551, 13 Pac. 438; Whalen v. C. & N. R. Co., 75 Wis. 654, 44 N. W. 849; Chicago, B. & Q. R. Co., v. Wymore, 40 Neb. 645, 58 N. W. 1120; H. & T. C. Ry. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Gunn v. Ohio River R. Co., 42 W. Va. 676, 26 S. E. 546, 36 L. R. A. 575; Mason v. Southern Ry., 58 S. C. 70, 36 S. E. 440, 53 L. R. A. 913, 79 Am. St. Rep. 826; McCall v. Railroad, 129 N. C. 298, 40 S. E. 67; Pickett v. Railroad, 117 N. C. 616, 23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611; Wooster v. C., M. & St. P. R. R. Co., 74 Iowa, 593, 38 N. W. 425; Conley’s Adm’r v. C., N. O, & T. P. Ry. Co., 89 Ky. 402, 12 S. W. 764; Hopk. Pers. Inj. section 87; 2 Thomp. Com. Law of Neg. section 1726.
From the authorities we are inclined to adhere to the rule already announced by this court that when for a considerable period numerous persons have been accustomed to walk across or along a railroad track in a thickly settled community or populous city, as shown by the evidence in this case, train operatives ought to be required to take notice of such usage, and to anticipate the probable presence of persons on or near the track, and to observe a reasonable lookout when their attention is not directed to the performance of other duties. On the morning in question some six or seven persons, including the deceased and his companion, were walking in the yard along the tracks in a southerly direction. They were making such use of the track as many others had made of it for a period of eight years. To require the train operatives to take notice of such usage and to regulate their actions accordingly is not unreasonable. Some duty, therefore, was imposed upon the train operatives with respect to observing a reasonable lookout in the direction of the moving train, the extent of which is not for us to say, but is to be determined by the triers of fact under all the circumstances of the case.
Notwithstanding such duties imposed on the train operatives, the deceased was himself in duty bound to observe a reasonable lookout for his own safety, and to exercise all reasonable care commensurate with the attending dangers to avoid coming in contact with cars and trains being moved and operated in the yard. He was at a place where cars might momentarily be expected. He had an unobstructed view of
“We think that the courts which still adhere to the doctrine which confines liability to cases of actual knowledge of peril only apply it to trespassers and not to mere instances of negligence on the part of the plaintiff not trespassing.”
In 55 L. R. .A. 418 may be found an extensive discussion of the doctrine of “last clear chance,” and where many cases from nearly all the states are collected and reviewed. They are summarized by the compiler on page 465 as follows:
“The foregoing review of the authorities, while disclosing much difference of opinion, with reference to the ultimate question as to the defendant’s liability to one guilty of negligence, under a given set of facts and circumstances, seems nevertheless, when proper distinctions are observed, to show a decided tendency on the part of the courts to apply the doctrine of ‘last clear chance’ to any omission of duty on the part of defendant, whether before or «after discovering the peril in which the plaintiff or deceased had placed himself, or his property, by his antecedent negligencej if that breach of duty intervened or continued after the negligence of the other party had ceased.”
This court, in harmony with the great weight of authority, seems to be committed to. the rule (when the injured or deceased person ~was not a trespasser) that the defendant’s act of negligence will be regarded as the sole proximate cause of the injury, not only when relating to a breach of duty oceur-ring after the consequences of contributory negligence have been discovered, but also when, in the exercise of ordinary care, such consequences could have been discovered, if a breach of duty intervened or continued after the commission' of the contributory negligence. While the breach of duty must be subsequent to the commission of the contributory
There is much reason for the distinction that the railroad company should not be held liable in case of an actual or conscious trespasser until his position of danger is discovered, and should be held liable in case of one not a trespasser ex-poed to peril through negligence, not only after the consequences of such negligence have been discovered, but which ordinarily could have been discovered, if there was a breach
\The judgment of the court below is therefore reversed, and a new trial granted, with costs to the appellant^ •