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Schwartz v. Delaware, etc., R. Co

speed of the train was not involved. The crossing was in an open country, and in the direction from which the train was coming there was an unobstructed view of 600 feet. Its speed was immaterial, for sight and sound would have availed to protect the deceased from collision with it. It is not the rate of speed that prevents a traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given. What we said in 211 Pa., 61 Atl., may have been misunderstood by the trial judge. All that was there said, or intended to be said, was that if one about to cross a railroad in the open country stops and listens, and no train is heard— that is, no warning of its approach is given by the engineer-the railroad company cannot, under such circumstances, run its train at such a reckless rate of speed as will run down the unwarned traveler. This simply means that it is not the rate of speed that is the negligence of the company, but the failure to give proper notice of the approach of the train. With proper warning given of such approach in an open country, rate of speed is not a question in determining whether the railroad company was negligent, and this has been settled in our own and other states.

In Reading & Columbia R. R. Co. v. Ritchie, 102 Pa. 425, we said: "The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight. It is authorized by law, and a railraod company in propelling its trains at high speed along its tracks in the open country is simply engaged in the lawful exercise of its franchise. If it is evidence of negligence that a train is run at this rate of speed, it must be because running at a less rate is a legal duty; but there is no such duty established either by statute or decision." One of the complaints of the plaintiff in Childs v. Pennsylvania R. R. Co., 150 Pa. 73, 24 Atl. 341, whose husband was killed at a railroad crossing in a rural portion of Philadelphia, was the rate of the speed of the train; the testimony showing it to have been from 45 to 50 miles an hour. She was allowed to recover because the jury found proper warning had not been given of the approach of the train; but, as to her contention that its speed was negligence, it was said: "We do not think any question of negligence grows out of the rate of speed upon these facts. The right of a railroad to move its trains at such rate as the necessities of its business, or the requirements of the public may make necessary, is subject only to such restrictions as may be found necessary in cities and populous towns. In the crowded centers of business and population the public sarety requires the speed to be moderated, but in the open country the single traveler over the wagon road may, under all ordinary circumstances, provide for his safety by compliance with the rule of law and of common sense that requires him to stop, look each way along the track, and to listen, for an approaching train, before attempting to cross the track. The movement of trains must be regulated by the railroad companies in the exercise of a business discretion, and upon con

Schwartz v. Delaware, etc., R. Co

sideration of the competition they have to encounter and the necessities of modern business. We do not think a jury may fix the maximum rate of speed at which a train shall be moved in the open country, or that a high rate of speed is negligence per se; but, while railroad companies may move their trains at such rate of speed as the character of their machinery and roadbed may make practicable, they must not forget that increased speed for the train means increased danger to those who must cross the tracks, and that increased care on their part to guard against accidents becomes a duty." In Newhard v. Pennsylvania R. R. Co., 153 Pa. 417, 26 Atl. 105, 19 L. R. A. 563, the plaintiff was driving a wagon over a grade crossing in an open country, and was injured by collision with one of the company's trains. The train was running over the crossing at the rate of 50 miles an hour. It was alleged that this was negligence, and that the duty of the company was to slow up at the crossing; but we said: "Wherein did the defendant in any particular fail in duty? It gave the signal of its approach to the crossing by the steam whistle. This was a duty which the law imposed, and was performed. But, it is argued, it was negligence in defendant to maintain the speed of 50 miles an hour in its approach to the crossing, for if it had 'slowed up' the plaintiff could have cleared the crossing before the train reached it. The weakness of this argument is in the implied duty it imposes on the railroad company of conceding the superior right of the traveler to the crossing; undoubtedly, when both are approaching the crossing at a rate of speed which would put them on it at the same time, unless one or the other 'slows up' or stops, disaster to one or the other, or both, follows. If the train had given the proper warning signal to the traveler of its intention immediately for a very short space of time to occupy the crossing, the further duty of 'slowing up' or stopping until the traveler has safely passed is not by law imposed upon it; that duty is on the traveler. In passing over a street in a city, town, or village, the circumstances being wholly different from a crossing in the country, ordinary care changes the duty, because these street crossings usually are at short intervals. The view of the traveler from the cross streets is obstructed by lines of buildings close to the track. While the sound of the whistle and the bell can be heard, it is difficult to determine their locality, or tell whether they come from an approaching or receding train. But the evidence here fails to show this crossing, so far as concerns danger, was in any material particular different from other crossings. The view at some points in the approach to it, as may be said of nearly all of them, is obstructed. Invariable human experience, however, as well as the evidence in the case, proves that the steam whistle of this coming train, in the open country, could be heard from a quarter to a half mile from where it was sounded. * * The question of speed becomes material only when neither sight nor sound can avail the traveler to guard against danger."

*

The third, fifth, seventh, and eighth assignments are sustained, and the judgment is reversed, with a venire facias de novo.

25 R R R-2

TEAKLE V. SAN PEDRO, L. A. & S. L. R. Co.

(Supreme Court of Utah, May 9, 1907.)
[90 Pac. Rep. 402.]

Appeal Prejudice Exclusion of Evidence.-Plaintiff was not prejudiced by the exclusion of evidence to prove a fact already shown by other witnesses.

Same-Assignment of Error-Necessity. The direction of a verdict for defendant cannot be reviewed on appeal where the ruling is not assigned as error.

Railroads Persons on Track-Licensees Care Required.* Where, for a considerable period of time, numerous persons had been accustomed to walk along or across a railroad track in a populous city, such persons were licensees, whose presence the railroad's train operatives were bound to anticipate and observe a reasonable lookout in order to prevent injury to them, when their attention was not directed to the performance of other duties.

Same Care of Pedestrian.t-Where a licensee was killed while walking along a railroad track, he was himself bound to observe a reasonable lookout for his own safety and exercise reasonable care, notwithstanding the duty imposed on the train operatives to observe a reasonable lookout to prevent injury to him.

Same-Contributory Negligence.§-Where intestate stepped on a switch track in front of a moving train, when but to look or otherwise to use ordinary care would have disclosed to him the train's approach, his negligence was a contributing cause of the accident, and barred a recovery unless intestate's death would not have resulted but for defendant's negligence occurring after intestate's negligence had spent its force.

Negligence Discovery of Peril‡-Before a person inflicting an injury can be charged with an omission of duty in failing to discover a perilous situation of another, there must be a duty owing from him to the person in peril which had it been performed with reasonable care would have disclosed the perilous position of the person injured. Railroads Death of Licensee-Last Clear Chance §-Intestate, a

*For the authorities in this series on the subject of the care due licensees and trespassers on railroad tracks, see foot-notes appended to Texas & P. Ry. Co. v. Modawell (C. C. A.), 23 R. R. R. 345, 46 Am. & Eng. R. Cas., N. S., 345; Thompson v. Cleveland, etc., Ry. Co. (Ill.), 23 R. R. R. 233, 46 Am. & Eng. R. Cas., N. S., 233.

For the authorities in this series on the questions, who are, and are not, licensees on railroad tracks or premises, see foot-notes appended to Keller v. Erie R. Co. (N. Y.), 22 R. R. R. 599, 45 Am. & Eng. R. Cas., N. S., 599; foot-notes appended to Peterson v. South & W. R. R. (N. Car.), 22 R. R. R. 355, 45 Am. & Eng. R. Cas., N. S., 355.

For the authorities in this series on the subject of the care required of licensees for their own safety, see foot-notes appended to Chesapeake & O. Ry. Co. v. Farrow's Adm'x (Va.), 22 R. R. R. 360, 45 Am. & Eng. R. Cas., N. S., 360.

See extensive note, vol. 17 R. R. R. 236, 40 Am. & Eng. R. Cas., N. S., 236.

$For the authorities in this series on the question whether there

Teakle v. San Pedro, etc., R. Co

licensee on defendant's railroad track, stepped in front of a backing train, consisting of an engine, tender, mail car, and baggage car. He was struck by the baggage car and thrown between the rails. No part of the train touched him except that a brake rod merely touched his clothing, until he was struck by the firebox of the engine, which rolled and dragged him, and when the cowcatcher passed over him he was crushed and dead. The brakeman on the end of the baggage car gave signals to the engineer to stop as soon as intestate was struck, but was unable to attract the engineer's attention, and another witness ran along the track on the fireman's side of the train, which was 184 feet long, and attempted to attract his attention, but was unable to do So. Held, that defendant, being bound to observe a lookout for licensees on the track, was also bound to provide for the exchange of signals, and that the doctrine of last clear chance was applicable, though the engineer had no actual knowledge of intestate's peril.

Same-Evidence.-Evidence as to the distance within which the train might have been stopped after intestate was struck was admissible, not only with respect to the duties owing from the engineer after he had knowledge of intestate's peril, but also with respect to the duties owing from the train operatives continuing or intervening after the commission of intestate's negligence, which, had they been performed with reasonable care, would have disclosed to the engineer the perilous situation in time to have avoided the fatality.

Appeal from District Court, Third District; before Justice T. D. Lewis.

Action by Nellie Teakle, as administratrix of the estate of Thomas W. Teakle, deceased, against the San Pedro, Los Angles & Salt Lake Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Richards, Richards & Ferry, for appellant
Whittemore & Cherrington, for respondent.

STRAUP, J. 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 may be a recovery against a railroad for injuries caused by a train or car against a person, where he was guilty of contributory negligence but his peril should have been discovered by those in charge of the train or car in time to have prevented the collision, see foot-notes appended to Texas & P. Ry. Co. v. Modawell (C. C. A.), 23 R. R. R. 345, 46 Am. & Eng. R. Cas., N. S., 345.

For the authorities in this series on the subject of the "last clear chance" doctrine, see foot-notes appended to Black v. New York, etc., R. Co. (Mass.), 23 R. R. R. 44, 46 Am. & Eng. R. Cas., N. S., 44; foot-notes appended to Hanson v. Manchester St. Ry. (N. H.), 22 R. R. R. 675, 45 Am. & Eng. R. Cas., N. S., 675; Reid v. Atlanta & C. Air Line Ry. Co. (N. Car.), 22 R. R. R. 670, 45 Am. & Eng. R. Cas., N. S., 670; foot-notes appended to Chesapeake & O. Ry. Co. v. Farrow's Adm'r (Va.), 22 R. R. R. 360, 45 Am. & Eng. R. Cas., N. S., 360.

Teakle v. San Pedro, etc., R. Co

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 objection. While they were so being used, employees of the defendant were there and knew of such use without making any objection thereto. At the corner af First North and Fourth West streets there was a sign which read that 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 hinderance or objection. The tracks and yard were along thickly settled portions of the city. At about 7:40 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 13 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 very clear whether the deceased was walking between the main track and the track immediately east of it, or between two tracks east of the main track. However, as the train was being switched from the one track to the other, and as the baggage car, which was the first car approaching him, reached the junction of the track east of the main track and the cross switch track, the deceased, who was on the track at that place, was struck by the baggage car, and was thrown between the rails of the track and was killed. There were about six other persons walking along the tracks in the yard and in a southerly direction at the same time that the deceased and his companion were so doing. Some of them passed the deceased on the way. One of them testified that he saw the train go to the north; that he expected it to come back; that he turned around and looked for it; that, when he was on the south side of North Temple street (a short distance south of the place of the accident), he saw the deceased "on the track at the frog where a switch track crosses from the track to the west into the track on the east. When the deceased was struck, the south end of the car was still on the switch track, and had not turned to the easterly track. The engine was pointing toward the north." Another witness testified: "When I got to North Temple street I heard a yell and turned around. I saw Teakie [the deceased] immediately in front of the

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