Martindale v. Oregon Short Line R.

FRICK, J. The plaintiff recovered judgment against the defendant for damages caused by the death of plaintiff’s daughter, a minor of the age of nineteen years. The death of such daughter, plaintiff alleged, was caused through the negligence of the defendant in running a passenger train over a public road crossing, in the State of Idaho, thereby causing said train to collide with a wagon in which said minor, with others, was riding at the time. After making the necessary allegations of inducement, plaintiff alleged the acts or causes of negligence on the part of the defendant as follows: (1) That the “defendant carelessly and negligently failed and omitted in approaching said crossing to have any headlight upon its engine;” (2) that the defendant “carelessly and negligently failed and omitted in approaching said crossing to blow the whistle * * * or ring the bell, or to in any wise give warning of the approach of said train;” (3) that the defendant ‘ ‘ carelessly and negligently failed and omitted to keep a diligent lookout ahead for * * * persons traveling over the said road and across the railroad track;” (4) that the defendant “carelessly and negligently operated said train at a high and dangerous rate of speed;” and (5) that the defendant “carelessly and negligently failed and omitted to keep the said train under reasonable control in approaching the said crossing.” Briefly stated, the plaintiff’s evidence shows: A public highway running east and west crosses 'defendant’s railroad track, which runs in a northeasterly and southwesterly direction. The following plat shows the precise angle at which the public road, marked P. R. on the plat, crosses the defendant railroad, marked R. R. on the plat: — 469 — Miss Martindale, the deceased, on the night of September 12, 1913, in company with three other yonng women and four yonng men, attended a dance some miles westerly from the crossing in question. In going to the dance in the evening, about eight-thirty, all rode in a covered, three-seated spring wagon. In going they did not drive over the crossing in-question, but passed along a road running east and west, but some distance north of the crossing. In returning home, however, for some reason the young man who drove the team took the road in question. In approaching the crossing three of the young people sat on the rear seat, three on the middle seat, and the deceased sat on one knee of one of the young women and on one knee o’f one of the young men, both of whom were riding on the middle seat, making four altogether on that seat, while the driver was in the front of the wagon. Whether he was sitting on the seat or down on the bottom of the wagon bed is not made very clear by the evidence. The deceased was so seated that she was facing north, or away from the railroad track and the direction from which the train was approaching the crossing. The team and wagon approached the crossing from the west. The directions in which both the train and wagon were moving are indicated by arrows on the plat. The deceased was visiting with friends or relatives who lived in the neighborhood, but their homes — 470 — were some miles away from the crossing in question. She had not before passed over the crossing, and, so far as disclosed, had no knowledge of and did not know that there was a ’ crossing at the place in question, or that the team and wagon were approaching that or any other railroad crossing. It further appears that the team was approaching the crossing on a slow trot, and that all of those in the wagon did not know they were in fact approaching the railroad crossing, and did not know of the approach of the train, which was a fast passenger train running at a speed of about thirty-five miles an hour. Nor did the engineer know that he had collided with the wagon' until he arrived at the next station, more than a mile distant from the crossing. The railroad crossing in daylight was visible for about 1,600' feet from the west, and the grade descended slightly towards the crossing, so that the engine at the time, in the language of the record, was “coasting” or running without exhausting steam in approaching the crossing. The engine and the team and wagon arrived at the crossing at the same moment of time, at about three-forty o’clock a. m., and the occupants of the wagon were thrown therefrom, some of them receiving more or less serious injuries, while Miss Martindale was killed outright. There is much evidence pro and con the question whether there was a headlight burning, whether any signals were given by the engineer in approaching the crossing. It was shown that the young man who drove the team was a competent driver. There was also evidence upon other phases of the case-shedding more or less light upon the accident. 1 We could subserve no good purpose, however, in further detailing the facts in view of the peculiar circumstances, and in view that all of the questions of fact were for the jury, and for that reason, so long as there is any substantial evidence in support of every element necessarily included in the general verdict, we are bound by the verdict. We felt impelled, however, to set forth the foregoing facts so that the reader may have a better understanding of the law which we shall now proceed to consider. The first question of law arises upon defendant’s motion for a directed verdict in its favor, which the court denied. — 471 — The defendant duly excepted to the ruling and now assigns the same as error. The motion, so far as material here, was substantially based upon the following grounds: (1) That the deceased was guilty of contributory negligence as a matter of law; and (2) that the driver of the team and wagon was guilty of negligence as a matter of law in attempting to cross the railroad track, which negligence must be imputed to the deceased. In considering the grounds, we, as a matter of course, must apply the law to the facts and circumstances as they affected the deceased, and not as they may have affected some or all of the others who were in the wagon with her at the time. 2 In view of the foregoing statement, was the deceased guilty of contributory negligence? We confess our entire inability -to discover any evidence or facts in this record from which any negligence on her part can legitimately be inferred or deduced by any reasonable mind. The very authorities cited by counsel for defendant support the foregoing statement. Counsel cite section 503, 1 Thomp. Com. L. Neg., in which the author cites the duties of one who is injured at a railroad crossing while riding with another who owns and drives the vehicle which is injured in a collision. The author says that “if he (the person injured) is riding by the side of the driver in an o-pen carriage, and the driver, on approaching a railway track, fails to make any use of his facilities,” etc., then, it is said, the person so riding must act to protect himself if necessary' and if he can do so. Counsel also cite 33 Cye. 1017, where the rule is stated that one riding in a carriage with a driver must avoid injury to himself “where he has an opportunity to do so, * * * and if he is familiar with the crossing to look or look and listen for himself, he is guilty of contributory negligence * * .* if he fails to use proper care,” etc. In Whitman v. Fisher, 98 Me. 575, 57 Atl. 895, also quoted from by counsel, it is said that “a person who is accompanying another upon a drive, and who has an opportunity to observe and give notice of dangers that may be avoided,” etc., must protect himself if he can. The italics in the foregoing excerpts are ours. We do not deem it necessary to quote further, since — 472 — the foregoing excerpts are quite sufficient to show that the situation in which the deceased was placed at and immediately prior to the accident clearly exculpate her from the charge of contributory negligence. As before pointed out, the deceased was a comparative stranger in the neighborhood, and at the time of, and immediately prior to, the accident she was visiting with friends and relatives who lived some miles distant from the railroad crossing in question; On the day of the accident, or perhaps the day preceding, she was invited by one, or perhaps two, of the young women who were in the wagon with her at the time of the accident to attend a dance on the evening of the night of the accident some miles west of where she was visiting. She accepted the invitation, and rode in the covered spring wagon we have mentioned with the young men and young women to and from the dance. In returning the young people were riding in the position before stated, and the deceased, being a stranger, knew- nothing about the railroad crossing; nor had she the slightest opportunity either to warn others or protect herself against the impending calamity. It was shown that the team was gentle, and that the driver was a young man reared on a farm, and was a competent driver. If one riding in a vehicle in the nighttime with others can, under such circumstances, be found guilty of contributory negligence in case of a collision, then it would be utterly impossible to successfully avoid the plea of contributory negligence in any case. Such, however, is not the law, as clearly appears from the excerpts we have quoted from the authorities cited by defendant’s counsel. 3 What has been said also answers the. contention that the driver of the team was negligent, and that his negligence must be imputed to the deceased. We need not now pass upon the driver’s negligence. What we now decide is that, even though it were assumed that the driver was guilty of negligence, yet his negligence cannot be imputed to the deceased. The question of imputed negligence is fully discussed in the cases of Atwood v. Utah Light & R. Co., 44 Utah 366, 140 Pac. 137, and Lochhead v. Jensen, 42 Utah 99, 129 Pac. 347. Counsel for defendant, however, insist that both of those cases are distinguishable from the case — 473 — at bar. We cannot agree with counsel in that regard. As we view those cases, they are decisive of the question of imputed negligence as that question arises here. Counsel, however, pleaded and introduced in evidence a certain decision emanating from the Supreme Court of Idaho wherein it is contended that court had arrived at a different conclusion upon the question of imputed negligence. At the hearing however,' counsel frankly conceded that the most that could be claimed for the Idaho decision was that it left the law upon the question of imputed negligence in Idaho somewhat in doubt. We are of the opinion, however, that there is nothing in the Idaho decision which in any way modifies the doctrine laid down in the two cases emanating- from this court to which reference has been made, and we have discovered no reason why we should depart from the rule announced in those cases, and counsel has suggested none. Nor can counsel’s contention prevail that the result in this case should be different from the one reached in the Atwood Case because all of those in the wagon were engaged in a common or joint enterprise. We pointed out in the Atwood Case that when different parties are engaged in a common or joint enterprise, or where all have the power to direct or control the driver of the vehicle or the team, then, in case of a collision and consequent injury, the doctrine of imputed negligence has no application, and the parties may be guilty of contributory negligence as in other cases where negligence is involved. The mere fact that the deceased accepted the invitation of her girl friends to attend the dance is, however, not sufficient to charge her with being interested in a common or joint enterprise with those who were with her in the wagon at the time. Nor did she have any control or direction over the driver or team. True, the evidence showed that she was permitted to drive the team for some distance in going to the dance. That, however, is not controlling here. We cannot see why a different rule should apply in this ease, so far as •vthe deceased is concerned, than was held to apply in the Atwood Case. It is also assigned as error that the court withdrew the question of the deceased’s contributory negligence from the jury. Counsel insist that under the facts and cir474 eumstanees that question should at least have been submitted to the jury for their determination. We have already discussed the facts relating to the young woman’s acts and conduct. We can only repeat that we can discover nothing from which reasonable men might find that she was guilty of contributory negligence. Upon that question this case does not materially differ from the Atwood Case, where we held the court committed no error in withdrawing the question of contributory negligence upon the part of the young woman from the jury. We are of the opinion that the court’s ruling in withdrawing that question from the jury under all the circumstances was proper. It also is insisted that the court erred in charging the jury as follows: 4, 5, 6 “You are further instructed that, where the operatives of a train approach and enter upon a public crossing carelessly, and a person driving over the crossing is killed as a consequence, no recovery of damages can be had from the company if he himself was guilty of negligently entering upon the crossing; for in such case he is guilty of contributory negligence. “But you are further instructed that, where a train is negligently run across a public highway and collides with a vehicle attempting to use the crossing, if a person in the vehicle who is not driving the same and has no management or control over it is killed, and such person is an unmarried daughter, .the father is not prevented from recovering damages because the driver of the vehicle was guilty of negligence in entering upon the crossing. Under such circumstances the father has the right to sue either the railroad company or the driver, or both, and if he brought suit against the driver, the driver could not escape responsibility by claiming that the railroad company was also negligent, and if he brought suit against the railroad company, it could not claim freedom from responsibility because the driver was also negligent ; and in this case the plaintiff is entitled to recover if the defendant was guilty of negligence in some of the particulars alleged in plaintiff’s complaint, and such negligence was the proximate cause of the accident resulting in the death of his — 475 — daughter, and no negligence of any one else could defeat the plaintiff’s right to recover except the negligence of the deceased; and in this case you are instructed that the deceased was not guilty of negligence. ’ ’ We have given the instruction in full, although those portions relating to contributory and imputed negligence have been already discussed and passed on. Counsel, however, especially except to that part of the instruction which we have italicized, and they in their brief contend, and in the oral argument vigorously insisted, that the court erred in so charging the jury. Much stress is laid upon the phrase that the jury were authorized to find for the plaintiff if they .found that '‘the defendant was guilty of negligence in some of the particulars alleged in the complaint, ’ ’ etc. In that connection it is insisted that no fewer than five acts or causes of negligence are alleged in the complaint. In order to make counsel’s contention clear we have set forth the five different acts or causes of negligence complained of at the beginning of this opinion. Counsel insist that under the charge the jury could have found against the defendant if they found any one of the five alleged causes or acts of negligence to exist, and found in connection therewith that such acts were the proximate cause of the injury. In that connection it is argued that there were several of the alleged acts or causes of negligence which were not supported by any evidence. It is not unusual — indeed, it is quite usual — to charge that the plaintiff must, by a preponderance of the evidence, establish one or more of the particular acts of negligence set forth in the complaint where more than one is pleaded, and that such act must be the proximate cause of the injury complained of. Such a charge is quite proper. In giving such a charge the court usually does no more than to limit the jury to the particular acts of negligence, whether of omission or commission, that are specified in the complaint. This is done to inform the jury of the rule, which to all lawyers is elementary, that the plaintiff must recover, if he recovers at all, upon the acts of negligence pleaded. Counsel, however, insist that, under all the circumstances, the instruction complained of means much more than that. They insist that the court in effect — 476 — charged the jury that they could find for the plaintiff upon any one of the five causes or acts of negligence alleged in the complaint whether there was any evidence to support any particular act or cause of negligence or not. If that construction of the instruction were assumed to be the correct one, there would be much force to counsel’s contention. It is, however, not necessary to determine whether counsel’s contention shall prevail or not, for the reason that we have carefully examined into the evidence, and, after doing so, are convinced that counsel’s contention that there is no evidence in support of several of the alleged acts or causes of negligence cannot prevail. At the hearing the. writer was impressed with counsel’s contention that no evidence was produced upon the question that a proper lookout had not been maintained by the fireman and engineer. It occurred to the writer, then, that inasmuch as the accident occurred in the darkness, at about three-forty o’clock in the morning, at a country road crossing with no habitation near, and which was not shown to have been frequented at that time of night, that at least some evidence was required other than the mere fact of the collision to show that no proper lookout was maintained by the train. After reading the evidence of both the fireman and engineer, however, there no longer remains any doubt in the mind of the writer regarding that question. They both testified that they not only did not look, but said that if they had looked they could and probably would have seen the team and wagon approaching the crossing. Indeed, the engineer testified that he could have seen the team approaching the crossing, and gave as a reason for not seeing it that it was not at the crossing at all; yet the evidence is clearly to the effect that there were marks in the very center of the roadway where it crosses the railroad track showing that the wagon had been struck and had been shoved along the rail in the direction the train was moving. Moreover, parts of the wagon and gearing, as well as several of the occupants thereof, were found on the pilot in front of the engine when the train arrived at the next station, which was about a mile northeast of the crossing. None of the trainmen, however, knew that any collision had occurred until they discovered the — 477 — persons and things on tbe pilot of tbe engine as just stated. There is therefore positive evidence that the trainmen did not look, and that if they had done so they would have seen the team and wagon. From all the evidence the jury could also have inferred that.they could have avoided the collision had they exercised that degree of care which is required of them at public crossings. If the evidence had been left as it was when the plaintiff rested his case, it would be extremely doubtful, to say the least, whether, in view of the time, place, and circumstances under which the'accident occurred, there would be any evidence authorizing a finding that no proper lookout had been maintained, or that, even though such had been done, the accident could have been prevented by those in charge of the train. The defendant’s evidence changed all that, not only with regard to the question of maintaining a lookout, but also inferentially with regard to several of the other acts or causes of negligence. While it is true that under all the circumstances it seems quite possible that the driver, as matter of law, may have been guilty of contributory negligence barring recovery, yet, as we have pointed out, that question, in view of the deceased’s position and conduct, is not controlling. We are of the opinion, therefore, that there is substantial evidence upon every essential element which it was necessary for the plaintiff to establish in order to recover. In view of that fact, we cannot interfere with the verdict. From what has already been said it also follows that the court committed no error either in charging the jury or in refusing certain requests of the defendant which were framed upon the theory of imputed and contributory negligence on the part of the deceased. The case was submitted to the jury upon the theory of the law as we have already held it to be, and hence no prejudicial error was committed. The judgment is affirmed, with costs to respondent. STRAUP, C. J., and McCARTY, J., concur.