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Teak!e v. San Pedro, etc., R. Co car at a point where the switch track comes from the track to the west of where he was walking into the track to the east of wnere he was walking. He had not changed his course when the car struck him." From this testimony it may be inferred that the deceased was walking between the main track and the track immediately east of it, and was crossing or walking on the switch track connecting these two tracks when he was struck. The brakeman, who was on the front or south end of the baggage car testified: "When I first saw these men [the deceased and his companion), they were in the open space between the cinder pit and the track (which was between the two tracks 'east of the main track], walking south, clear of the train on the track that we were on. They stepped over on our track about 20 feet in front of us." Either view of the evidence, however, shows that the deceased stepped on the track in front of the moving train. The morning was bright and clear, and the deceased's view of the train was wholly unobstructed. The ground was practically level, sloping slightly to the south. The train could easily have been seen by him, and he could easily have been seen by the train crew. Four witnesses, persons who were walking along the yard at the time in question, testified that they heard no whistle blown nor bell rung, nor any warning given before the collision and as the train approached, and that, had such warnings been given, they would have heard them. One witness also testified that, when the deceased was struck, he was thrown between the rails with his head to the north and his arm thrown over the east rail of the switch track, and that the witness, who was but a short distance away, "immediately ran back to where he was, and when I reached there he was still lying in the same position as he had fallen. Hadn't been moved, and his clothing was not disarranged. The set of trucks on the north of the car had not reached him. I saw this end of the car pass over him, also the car following, and the tender of the engine, during all of which time he remained in the same position and with his clothing in the same condition. I know that he was alive when I first reached him, because I saw him lower his head. In passing over him no part of the train touched him, except one brake rod, which merely touched his clothing, until he was struck by the fire box of the engine," which rolled and dragged him, and when he came out from under the cowcatcher he was crushed and doubled up, and was then dead. Several other witnesses testified to the same facts. Another witness testified that, when he reached the place where the deceased was lying, the north end of the track of the car which struck him had not yet passed over the deceased, and that the witness then ran along the track to the north a distance of three or four yards on the fireman's side of the train, hallooing that there was a man under the train and to stop; that he did not see the fireman in the cab. and could not attract his attention; and that he then returned to the place where the deceased lay. The train was about 184 feet in length. The brakeman testified that he was on the southeast corner of the baggage car, and, when the deceased stepped on the Teakle v. San Pedro, etc., R. Co track, he hallooed and tried to attract his attention; that he (the brakeman) gave signals to the engineer to stop as soon as the deceased was struck; that the baggage car was on a reverse curve, which would constitute some obstruction to the engineer's view; that he gave no other signal on the car because he knew that the engineer could not see any further signals given on the car, because of the curve, and that he then jumped off the east end of the car, and ran around in frort of the moving train to the west side and gave a signal on the fireman's side. He further testified “I could not get off of the car on the east to any advantage, simply because there was a cinder pit in front of me and a trestle, which were so close to the track we were on as to still have the engineer's view of me obstructed by the curve. There was no way I could have stopped the car myself. * * * I did not run north along the side of the train on the engineer's side on account of the cinder pit, which was nine or ten feet from the east rail on which the train was moving." The foregoing is a substantial statement of the evidence as shown on the part of the plaintiff. When she rested her case, the defendant also rested. At the request of the defendant the court directed a verdict in its favor. The plaintiff appeals.
During the trial the plaintiff called a witness, a Mr. Reid, who, after he had testified that he was walking in the yard about 50 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 50 feet from the place of the accident]did you hear any whistle sounded ?" This was objected to as being irrelevant, immaterial, and 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 belonging to the railroad company. The objection was sustained. The plaintiff also called a Mr. Ganzer, who, after testifying that he was a locomotive engineer and was familiar with the large passenger engines of the defendant, was asked if he could state within what distance a passenger engine pushing or backing a mail car and a baggage car could be stopped on a slight incline or level track; the train moving at from three to five miles an hour. This question was objected to as irrelevant, immaterial, and incompetent, and particularly for the reason that in view of the proof, it was immaterial in what distance the train could be stopped. Plaintiff's counsel stated the purpose was to show that after the deceased was knocked down the car could have been stopped within a distance of 15 or 20 feet. “The Court: Until it is apparent that the engineer saw him or knew that he was on the track there, I do not see how it is matcrial. The objection will be sustained.” Several other questions of like kind were asked the witness, and offers of proof were made that the train in question could mave Leen stopped after the deceased was struck within 15 or 20 feet, but to each of them the court sustained objections for the same reasons heretofore stated.
Teakle v. San Pedro, etc., R. Co 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 failure 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 premitted to show the failure to give the warnings by this particular wiiness. If the ruling of the court directing a verdict was right notwithstanding four or five witness 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 sanie fact. It is manifest that it was not the ruling upon this question which resulted in the direction of the verdict. If the court erred in directing a verdict, such ruling ought to have been assigned, in order to authorize us to review it. The assignment of error is the foundation upon which rests the right of the appellate court to review the errors imputed to the trial court, and this court has repeatedly held that only such errors as are assigned will be reviewed, unless it is something which goes to the jurisdiction of the court.
The next ruling complained of is that the plaintiff was not permitted to show that the train could have been stopped within 15 or 20 feet after the deceased was discovered on the track by the brakeman, and after he was struck by the moving train. This evidence was offered, as stated by plaintiff's counsel, in support of the theory, based on the last clear chance doctrine. This assignment rests upon a foundation different from the other. The showing of this fact was essential in support of the theory. Without it, the evidence would be insufficient to support it. Its absence neessarily leads to a direction of a verdict for the defendant, if plaintiff's case depended upon the doctrine for a cause of action. If erroneous, the ruling was therefore prejudicial. This is not so because the proffered testimony was within itself sufficient to entitle the plaintiff to go to the jury, but because it was a material and essential element required to bc shown in proving that the defendant had the last clear chance to avoid the consequences of the deceased's negligence. We therefore pass to a consideration of the ruling excluding this evidence.
The ruling seems to have been made on the theory that the deceased was a trespasser, and that the train operatives owed him no duty until he 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 the engineer owed no duty of lookout, nor to stop the train, until he had knowledge of the peril. It undoubtedly is the general rule that train operatives owe no duty of lookout to discover a trespasser upon the track, and to such a one owe no duty until he is discovered in a position of danger. But the authorities seemingly divide on the point as to whether a person, walking
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Teakle v. San Pedro, etc., R. Co along the track, as did the deceased, under the circumstances disclosed by the evidence, is a trespasser or stands in a relation any better than that of a trespasser; that is, whether one who walks along or crosses a railroad track at a place where for many years the general public have been accustomed to make the track a thoroughfare without objection, or by the acquiescence of the railroad company, stands in the relation of a trespasser in the sense that the train operatives owe no duty of lookout or of giving warnings when operating trains along such place. It has been held that such a person is a trespasser, and that the train operatives owe him no duty of lookout or of giving warnings, and that the only duty owing by them to him is not to wantonly or willfully injure him after he is discovered in a perilous situation. Egan v. Montanna Cent. Ry. Co., 24 Mont. 569, 63 Pac. 831; Glass v. Memphis & Charleston R. R. Co., 94 Ala. 581, 10 South. 215. Mr. Elliott, in his work on railroads (volume 3, § 1250), with considerable force urges that, whether such a person be regarded as a trespasser or a bare licensee, the duty which the train operatives owe him is the same—not to willfully or wantonly injure him, but to use reasonable care to avoid injury after his danger is discovered, that, if a person be there as a bare licensee, his license is subject to the “concomitant perils,” and that he will look out for his own safety without special warnings or change by the company in the manner of using its railroad, and that the train operatives may act on this assumption until they discover the danger.
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 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 17 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
Teakle v. San Pedro, etc., R. Co 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 evidence 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 duty until they saw it; and that they were under no obligation to 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 property 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.