99 P. 466 | Utah | 1909
Lead Opinion
This is an action for personal injuries and damages to property appellant claims to' have sustained through the negligence of respondent’s employees. The alleged acts of negligence consisted in failing to give the statutory signals, and in operating a locomotive engine at excessive speed in approaching a public street crossing in the city of Ogden, 'Utah. The respondent denied the allegations of negligence, and pleaded contributory negligence.
The controlling facts, which are undisputed or conceded, are substantially as follows: On the 26th day of April, 1906, at about 5:30 o’clock p>. m., the appellant was traveling, with his horse hitched to a covered milk wagon, south on a street known as Wall avenue, in Ogden City. The respondent’s main line of railroad is located upon this avenue running north and south, and is in about the center thereof. That Twenty-first street crosses this avenue at right angles, running east and west. That appellant for some distance was driving parallel with'the railroad track on Wall avenue, intending to cross said track on Twenty-first street. That in driving along Wall avenue he saw an engine standing still headed to the north on a switch or side track about four hundred yards north of the crossing. That appellant
His counsel then propounded certain questions which appellant answered on direct examination, as follows: “Q. What did you do when you got to Twenty-first street? A. I.started to cross the track. Q. Which way were you looking? A. I was looking towards the south, expecting the Cache Yalley train to come along, knowing that she was due there. Q. At that time? A. Yes, sir. Q. What happened to you just as you got on the tracks of the Oregon Short Line Railroad ? A. I heard a noise, and I looked up, and the engine was right onto me. I just had time to twist my horse around toward the south, expecting them to stop, but they never stopped.” On cross-examination, the following questions were put to appellant, and he answered thereto as follows: “Q. After you looked at the engine, when you were seventy-five yards from it, when was the last time that you saw it ? Did you see it after that time ? A. Not until it hit me. Q. You didn’t look again to see where it was ? A. No. Q. Did you stop your horse before you started to go across the railroad track? A. No, sir.” Appellant further testified that his horse was trotting as he approached and passed onto the crossing; that he was sitting inside of a covered milk wagon which had doors or windows at the sides, and in looking back at the engine he looked through one of these doors or windows; that he had three large and two small milk cans in the wagon which made some noise as he was driving along; that he was well acquainted with the crossing and its vicinity, and had passed over it daily on his milk route and sometimes several times a day; that he worked in the railroad yards some distance from the crossing in question as a stationary engineer, and that-he had had some experience as a locomotive engineer;
Upon substantially the foregoing evidence, the appellant rested his case and the respondent also rested, and moved the court for a directed verdict for respondent. The court granted the motion, and directed the jury to return a verdict in favor of respondent. Appellant excepted -to this instruc
Appellant’s counsel strenuously insists tbat, in view of all tbe circumstances disclosed by tbe evidence, tbe question of contributory negligence on tbe part of bis client was a question of fact for tbe jury to- pass on. At tbe bearing tbe writer at least was much inclined to tbis view in view of all tbe circumstances detailed by tbe appellant; but, after a thorough examination of tbe authorities, tbe conclusion has been forced upon bim tbat tbe facts and circumstances disclosed by tbis record do not establish an exception to tbe general rule of law applicable to collisions at street crossings between a traveler and an engine or train of cars. In such cases tbe courts have formulated a rule of conduct which must be heeded by tbe traveler, and, if tbe evidence without conflict or dispute shows tbat be did not exercise ordinary care in observing tbe legal duty imposed on bim in attempting to cross when be was not confused or bis attention diverted by other threatened dangers, be cannot recover, although tbe railroad company also was guilty of negligence in not giving proper signals or in running its train at an excessive rate of speed. In all cases grounded upon negligence, tbe law imposes tbe duty of ordinary care which must be exercised by both the one causing
The law, as it has been generally adopted and applied by the courts of this country, is quoted by Mr. Justice Coffey in Mann v. Belt Ry. & Stockyard Co., 128 Ind. 142, 26 N. E. 820, as follows:
"When, one approaches a point upon a highway where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in vehicle of any description, he must exercise in so doing what the law regards as ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption. The requirements of the. law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term, 'ordinary care under the circumstances’ shall mean in these cases. In the progress of the law in this behalf the question of care at railway crossings, as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum, of care is exactly prescribed as matter of law. In attempting to cross the traveler3 must listen for signals, notice signs put up as warnings, and look attentively up and. down the track. . . ■ . If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either that he did not look, -or, if he did look, that he did not heed what he saw. Such conduct is held negligence per se.”
The principle involved in the foregoing cases is referred to and adopted in the case of Silcock v. R. G. W. Ry., 22 Utah 179, 61 Pac. 565, although the accident in that case did not arise out of a collision at a crossing. In the case of Teakle v. S. P., L. A. & S. L. Ry., 32 Utah 276, 90 Pac. 403, 10 L. R. A. (N. S.) 486, and in Rogers v. R. G. W. Ry., 32 Utah 367, 90 Pac. 1075, we announced the doctrine that, - although the. employees of a railroad company are guilty of negligence, this does not absolve the injured person from exercising that degree of care which the law requires of him for his own safety, and if by the exercise of ordinary care on his part the injury could have been avoided, and if this fact is conceded, or is clearly established by the undisputed evidence in the case, then he is guilty of such negligence as will prevent a x’eeovery unless the injury could have been avoided by the railroad company by the exercise of ordinary care after the injured person is discovered in a place of imminent danger. Where the latter phase of an accident is involved, it is ordinarily a question of fact for the jury, and this is so, although the precedent and concurring negligence of both parties is conceded or established without dispute. In the case of Beyel v. N. N. & M. V. Rd. Co., 34 W. Va. 544, 12 S. E. 534, Mr. Justice Brannon, in passing upon the question involved in this case, makes the following remarks:
“I confess I am surprised to find the law on this subject as it is, and that, as an original question, I would have felt inclined to say that the omission of these statutory warnings would call for a recovery, that the statute designed them to arouse to caution and watchfulness those who, for the time, from the cares or griefs of life, are sunk in listless inattention, or even the careless and negligent; but the great current of authority does not justify this view. Perhaps, as the distinguished' Judge Sharswood says, a public policy, designed to save the lives of the thousands who in these days travel on our railroads, has had a large share in so settling the law. We do not intend to impugn the general principle of Nuzum v. Railroad Co., 30 W. Va. 228, 4 S. E. 242. We say that the omission of the*119 signals or warnings required by tbe statute is negligence in a railroad company prima facie, entitling an injured party to recover, and be is not, after proving sucb negligence and bis injury, called on to prove that be is not guilty of contributory negligence; but when it appears from tbe evidence adduced by a plaintiff, or is satisfactorily shown by tbe defendant, that the plaintiff is guilty of contributory negligence, then it falls under tbe general principles of tbe law of contributory negligence above stated.”
If we now apply tbe law as tbe same is declared by tbe overwhelming weight of authority in this country to tbe undisputed facts in this case, we are compelled to declare tbe acts of respondent’s employees in failing to give tbe statutory signals in approaching tbe crossing in question as constituting negligence per se. If, however, we declare sucb an omission on their part as culpable negligence, bow can we escape from declaring tbe omissions of tbe appellant in not looking (when be could have seen) before attempting to cross tbe railroad track as likewise negligent? It is true that appellant’s counsel seeks to distinguish between tbe acts of negligence on tbe part of respondent’s employees and those of bis client. lie asserts that while there was no excuse for omitting to comply with tbe law in operating tbe engine, and in giving tbe warning signals, tbe conditions and circumstances surrounding bis client were sucb that it was a matter to be left to tbe jury to say whether it was negligent or not in omitting to look for tbe engine before attempting to cross tbe track. No doubt there are crossing accidents where tbe injured person may recover notwithstanding that be has, constructively or technically speaking failed to look or listen just before attempting to cross tbe railroad track at a particular place and under peculiar circumstances. In case tbe traveler has been misled by some affirmative act of some employee of tbe railroad company, sucH as a signal to proceed from a flagman stationed at tbe crossing, or where be has been placed in sudden peril by some act of omission or commission by tbe company, or where be is in a situation where danger is threatened from different directions and causes, and be has become confused thereby
No such an excuse exists in this ease. Quite true, appellant claims that he was misled by respondent’s employees in •this: (1) That the engine was standing still upon a switch track, and was headed in the opposite direction from where he intended'to cross; (2) that another train was then approaching from the opposite direction which would have to pass over the crossing in question in a very short time; (3) that there was another track which crossed -the track of respondent between the street- crossing and the engine which the engine 'would have to cross before reaching the street crossing where appellant was injured; and (4) that appellant relied on the warning signals which were not given. When we come to analyze these matters, however, it is readily perceived that appellant simply assumed that they would occur simply because, in his judgment, under the circumstances,, he naturally expected that they ought to occur. As to the first ground, appellant had no right to assume that, because the engine stood still where he saw it four hundred yards north of and when he was seventy-five yards from the crossing, it would remain there. Engines are put upon .tracks to be moved, and may move in either direction and upon any track at most any time. This is a matter known to all. As to the second ground, while, when applied to an ordinary case of negligence, the assumption or expectation might have been permissible, appellant had no right to implicitly rely upon it, since the engine might move over the track ahead of the train which was then approaching from the south. As to the third ground, it is not made' to appear from the evidence whether the crossing of the two tracks was such as required the respondent to either give a signal,
Tbe only inference that can be deduced from appellant’s testimony is that the engine got to the- crossing at about tbe same time as be did. He says: “I just bad time to twist my horse toward tbe south” when tbe rear end of tbe engine struck tbe horse, and dragged him along the track for some distance. While we have no disposition to pass upon tbe weight of tbe evidence, and disclaim any right to do so-, we nevertheless may not ignore self-evident conclusions arising from undisputed facts. We may assume, therefore, that there was not sufficient time intervening between tbe time tbe appellant entered upon tbe track and tbe occurrence of tbe collision to have stopped tbe engine and averted tbe injury. As we understand tbe last clear chance rule, it applies only where tbe
Nor is the suggestion that the whole burden to avoid a collision is cast upon the traveler if the rule is strictly enforced that, in order to avoid a plea of contributory negligence, he must look and listen before entering upon or crossing a railroad track, of controlling force. In this connection it must be remembered that the rule is a rule of safety. It is also based upon that universal knowledge and experience that it is at least as easy, if not easier, for the traveler to see or hear an approaching train as it is for an engineer or fireman to see the traveler; that it requires less effort to arrest the movement of a horse, team, or other ordinary road vehicle than it does a train of cars or even a moving engine; that a railroad crossing is a place of danger which all must approach and enter with care, and, finally, that a collision endangers not only the lives of those who thoughtlessly or heedlessly enter upon the track, but it imperils the safety as well as the lives of many who are upon the train; and who are powerless to avert the collision and avoid the injuries that may result therefrom. The rule is therefore based upon common sense, reason, and sound public policy, which aims at avoiding danger by imposing
We have carefully examined all the cases cited by counsel for appellant, but have been unable to find any warranty in them for permitting a recovery in this case in view of the undisputed facts. We shall very briefly review them. Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403, is the strongest case in appellant’s favor in view of the facts as stated in the opinion. The facts, however, are very meagerly reported, and not a single case is cited in support of the conclusion reached. From the later federal cases and the doctrine therein announced, it is only fair to assume that there was something in the record in this case
From the foregoing it follows that the trial court did not err in directing a verdict for the respondent, and that the judgment therefore should be, and it accordingly is, affirmed. In view of the great length of respondent’s brief, made so by very copious quotations from the decided cases, counsel for the respective parties have agreed that neither party shall recover costs in ease of an affirmance of the judgment, and it is so ordered.
Dissenting Opinion
(dissenting).
The proposition has become well established that a traveler in approaching a railroad crossing is required to look up and down the track and listen for approaching ears and trains; and that when the evidence shows that the view was unobstructed, and that there were no complicated circumstances calculated to deceive and throw him off his guard, and that he attempted to cross without looking and listening, his conduct will be declared negligence on the facts by the court as matter of law. With this I fully agree. I think that when a traveler, under ordinary circumstances, approaches and attempts to cross a railroad at a crossing without looking and listening for approaching cars and trains, reasonable minds may not differ upon the question that such conduct shows negligence on his part. The conduct is, therefore, declared to be negligence by the court. Courts, however, do not reach such conclusion on the theory that the law has imposed positive
Now, if the evidence in this ease conclusively showed that the plaintiff in approaching and in attempting to drive over
Unless a hard and fast rule shall be laid down that a traveler is bound to look attentively both ways at the exact moment just before entering upon a railroad track at a crossing, notwithstanding the care exercised by him in looking both ways for approaching cars or trains in approaching
It is, in effect, said that the plaintiff -had no right to assume that the engine would remain on the switch track a sufficient length of time in which he could safely pass, and that it would not be propelled south along the main track before he had passed over the crossing. I think no conclusive presumption in respect of such a matter can be indulged either way. The question whether the plaintiff was justified or was negligent in drawing such an inference at the time depended upon the facts and circumstances of the case, and was one of fact. So, too, it is also, in effect, said that the plaintiff had no right to assume that the defendant in propelling an engine south along the main track would stop or check it before crossing the Denver & Rio Grande track, and that signals and warning of its approach would be given, and the speed of the engine limited and restricted. A plaintiff may not excuse or defend his own negligence by showing that he relied on the presumption that the defendant would observe the law, and that he would exercise ordinary care; that is, if it is determined that the plaintiff was negligent, his negligence may not be excused or defended by showing his reliance on such presumptions. But it must be remembered that the question to be determined is: Was the plaintiff conclusively guilty of negligence? To assume the conclusion as a first, premise of a syllogism does not elucidate anything. I have always understood the law to be that the rights and duties of a traveler and a railroad company at a crossing are in the main mutual and reciprocal. The whole duty is not cast on either one to prevent collisions and injuries. A plaintiff may not heedlessly and carelessly at
There may be instances where, though one looked for approaching ’ cars seventy-five yards .from a crossing and saw none, he still would be negligent in not looking again before attempting to cross; but ordinarily the questions whether one exercised ordinary care in looking at the proper time
I also think that the rule announced in the ease of Gratiot v. M. P. R. Co., 116 Mo. 450, 21 S. W. 1094, 16 L. R. A. 189, and in the cases there cited, is here applicable and should be applied.
I am of the opinion that both the questions of the defendant’s and the plaintiff’s negligence ought to have been submitted to the jury. I therefore dissent.