
    KYNE v. SOUTHERN PACIFIC COMPANY et al.
    No. 2350.
    Decided July 31, 1912
    (126 Pac. 311).
    1. Railroads — Persons on Track — Action foe Collision — Evidence — Admissibility. In an action against a railway company for injury to the child of an employee, who was struck by a train, evidence, not only that she and members of her family had customarily crossed the track at that point in going from a depot to a water tank at which the company supplied the family with water for domestic use, but that other persons had crossed on similar occasions and under similar circumstances, was admissible under the complaint, which alleged substantially, though inartifically, facts imposing "a legal duty on the company to use ordinary care to maintain a lookout for persons who might be expected to be about the track at that point, and to give timely signals. (Page 374.)
    2. Railroads — Duty to Pedestrians. "Where persons customarily crossed a railroad track in going to a water tank, where they were provided by the railroad company with water for domestic use, the company in operating its trains was bound to use ordinary care to maintain a lookout to discover the presence of such persons as might naturally be expected to be at that point, and give them timely warnings or signals of the approach of a train. (Page 376.)
    3. RAILROADS — INJURY TO PEDESTRIAN — NEGLIGENCE — EVIDENCE — ■ Sufficiency. In an action against a railroad company for injury to a child, struck by a train while crossing the trade at a point customarily used by pedestrians, evidence held to warrant a finding of negligent failure to maintain a lookout and give timely warnings or signals. (Page 376.)
    4. Railroads — Injury to Pedestrian — Contributory Negligence— Jury Question. In an action against a railway company for injury to a child while crossing a track, whether she was guilty of contributory negligence held, under the evidence, a jury question. (Page 376.)
    5. Negligence — Contributory Negligence — Children. The question whether a ten and a half year old child was guilty of negligence contributing to her injury is to be determined by consideration of the care that an ordinary child of her age, intelligence, and experience would have used. (Page 376.)
    6. Railroads — Injury to Pedestrian — Licensees. The child of a railway employee was not a trespasser or bare licensee in crossing a track to procure water for use of her family, provided by the railway company at a tank. (Page 377.)
    7. Railroads — Injury to Pedestrian — Last Clear Chance. In an action against a railway company for injury to a child, who was struck by a train, existence of a duty to maintain a reasonable lookout to discover persons who might be near the track, and a clear view of the track in advance of the moving train, rendered applicable an instruction on the last clear chance doctrine. (Page 377.)
    Appeal from District Court, Second District; Hon. J. A. Howell, Judge.
    Action by Nora A. Kyne, a minor, by PI- O. Kyne, her guardian ad litem, against tbe Southern Pacific Company and another.
    
      Judgment for plaintiff. Defendants appeal.
    ÁRNIRMED.
    
      Parley- Williams, Geo. H. Smith, and F. K. Nebeker for appellants.
    
      Joseph Chez and Willis & Devine for respondent.
   STRAUP, J.

Tbis is an action to recover damages for personal injuries alleged to have been sustained1 through the defendants’ negligence. A verdict was rendered for the plaintiff. The defendants appeal.

The assignments relate to the admission of certain evidence, the court’s refusal to direct a verdict in the defendants’ favor, and to1 the charge.

The accident occurred ait Lakeside, a station in Box Elder County on the west shore of the Great Salt Lake on the defendant company’s main line. The residents of the station consisted of ten or fifteen families and about 300 men, employees of the defendant Southern Pacific Company. The plaintiff was between ten and eleven years of age. Her father was in the employ of the company and with his family resided at Lakeside. At that place there were three tracks running east and west. The main track was about thirty feet north of the depot. Between that track and the depot were two other tracks, one of them a passing track, and the other leading to a quarry about a quarter of a. mile away, where the company was engaged in quarrying, and where plaintiff’s father was employed as a powderman. At Lakeside a boarding house and bunkhouses of the employees were on the north side of the tracks, and the houses of families on the north and south side. The house of the plaintiff’s father was on the north side> about 300 yards west of the depot. The country at Lakeside is very arid, and without water for drinking and culinary purposes. The company supplied its employees and those residing at Lakeside with water, and for tbait purpose maiutaiued a large tank east of the depot and south of the tracks, which it kept filled with water transported by it from Lemay, about thirty miles away. A pipe line from the tank to the boarding house supplied the boarding house with water. Those of the families living in separate houses got water direct from the tank and carried it to their houses. The station and tracks were unfenced, and persons on the north side of the tracks, in going to and from the tank and depot, were obliged to cross the tracks. Plaintiffs father testified:

“In passing from my home to the depot, we used to use the pathway between the two tracks, the main line track and the one that the quarry came up and down on. We had to cross the tracks going south. We would go about 160 yards east; then the path turns south and terminated at the depot. During the time I lived there, we obtained water from the tank at the depot on the south side of the railroad tracks. During the time I lived there, I carried water from this well to the house noon and evening, when I came off work. I carried it in two buckets. I was then in the employ of the Southern Pacific Company as a powderman, blasting boulders too large to- be handled by the steam shovel. I would come in to nay noonday meal on the work train, and had been doing that for over a year. Before the 5th day of April, 1910 (the day of the accident), I had been in the habit of getting the water when I came in at noon in buckets left'at the well by Nora (the plaintiff). She went to the well probably twice every day from December, 1909, until she got hurt. I also obtained the water every evening. Nora brought me the buckets. After getting the water, we would cross the tracks, then go straight west until I came to another trail, and then go up over the hill and go. home. On the day of the accident, I was at the quarry blasting. It was between twelve and one o’clock, and I was working during the noon hour. When I got through working (that day he did not come down on the work train as usual), I came down about half past twelve, and saw a crowd running out toward the depot.”

Tbe work train wbicb caused tbe injury came in from tbe quarry from tbe west. Tbe first car as it approached was tbe caboose, then a water car, tben tbe engine, tben a fiat car. Tbe train stopped near tbe depot. There tbe train crew and tbe employees coming from tbe quarry left it and went to lunch at tbe boarding bouse. Shortly thereafter tbe defendant Jensen, tbe switch foreman of tbe work train, and who bad direction and control over it, alone boarded tbe engine, and, without assistance and without signals or warning, ran and operated tbe train to a switch to tbe east of tbe depot, and there switched tbe train to' another track, and, without warning or signals of its approach, ran it back towards tbe west on another track and struck tbe plaintiff, who was standing near tbe south rail of that track, and near tbe depot, looking towards tbe west for her father. Tbe plaintiff testified that she took tbe buckets to tbe depot for her father, and “when I got there I set tbe buckets down in front of tbe depot, and went to Healy’s (near by) to get some salt. I got.the salt and came back to tbe depot. I saw tbe train when it came in. Tbe train stopped. I saw tbe fireman and engineer get off. I knew them. My brother went around to tbe pump (tank) with tbe buckets to fill them. When I gave the buckets to my brother, I was on tbe side next to the tracks. I tben went close up to tbe track tó' look for Papa, because he bad not come in on that train. I was, I guess, three or four feet from tbe depot building. When I first saw tbe train, it was about fifty or sixty feet towards tbe quarry from tbe depot, and was standing still. I did not see it after that. • A flat car struck me on tbe breast, and dragged me about twenty or thirty feet. I was on tbe ground while being dragged. I did not see whether a train was moving before I got back from Healy’s. I went within one foot of tbe track. Before reaching that point, I did not look to see if a train was coming. I listened for a train. I looked westerly to see if a train was coming from that direction, but not easterly. I stayed in the place where tbe car struck mie three or four minutes. When my brother went to get tbe water, I was close to- tbe depot; but I did not have any conversation with. him. I did not bear any whistle sounded at tbe time tbe train moved from tbe place where my brother got off tbe engine. I was behind tbe freight depot when tbe train stopped; but I saw it when my brother got off. It stopped towards tbe quarry from tbe boarding bouse. I could not see tbe train on account of coal cars and tbe thing they bad there to load coal on engines with. But these objects were not between me and tbe train at tbe time tbe men were getting off. I know that tbe train was moved. I know where it always went when it came in; it bad to switch in for coal, and went down on that track for a little ways below tbe depot towards tbe lake, and then it bad to come up on another track. That is the way that train always took on coal.” Her foot was run over and amputated back of tbe toes.

Her brother testified that when tbe train came in be saw bis sister; that be got off tbe train, took tbe buckets, and “went around tbe comer to tbe pump. I pumped tbe water and started back to where my sister was. I saw her being dragged as I came around tbe comer. She was lying on her back. She was next to tbe flat ear, her bead towards tbe depot. I did not bear any bell or whistle, I became aware for tbe first time that tbe train was in that locality when I turned around with my buckets, because I bad not beard it make any noise up to that time. It was moving about as fast as I could run. When I saw my sister, I dropped the buckets and ran toward tbe engine and gave the stop' signal to Jensen. I hollered to him. He was running tbe engine. He was in where the engineer sits when be runs tbe engine, on tbe north side, kind of kneeling down on tbe seat. I did not see any one else except Jensen. I told him to> stop; that my sister' was under the train. He looked towards me. When I first hollered at him, be was looking in front of tbe engine; but be turned around and looked toward me. He did not say anything to mie after I hollered to him. After I gave tbe stop1 signal and hollered, tbe train traveled about as far as across this room, east and' west, and then my sister got loose from tbe car (her foot becoming detached from tbe shoe). At the time I gave the signal to stop^ Jensen, was looking towards me. I was right by the steps that go up to the cab of the engine. I moved along with the train, and quit running when my sister got out from under the train.”

The train was not stopped until it reached its destination. There Jensen left it, went to his home, and then came back where the plaintiff was. She had ordinary intelligence of one of her age, knew the difference between a passenger and a freight train, and testified that she customarily looked and listened for trains, and that on the day she was injured and on her way to the well she looked in both directions before going on the track, and, “before stopping on either of the tracks, or very close to them, I looked and listened for the purpose of seeing •whether trains were coming,” but she did not look easterly, only westerly, for trains, after she got back from Iiealy’s, and when she stepped to the south track looking for her brother.

The foregoing is, in substance, the evidence adduced by the plaintiff. The defendants offered no evidence.

Several witnesses for the plaintiff were permitted to testify, over the defendants’ objections, that not only the plaintiff and members of her family had customarily crossed and traveled the railroad tracks in going to and from the depot and the water tank, but that children of other families and other persons residing at Lakeside had also done so on similar occasions and under similar circumstances. This was objected to as not being within the issue. Counsel concede that the evidence would have been proper, had there been averments in the complaint of such facts, but assert the complaint contains no such averments. The complaint is not a model, and is rather wordy and inar-tificial. But the facts in respect of the station, tracks, and physical conditions at Lakeside, the situation of the water tank, the transportation and supply of water by the company for the use “and needs of its employees” at Lakeside, the employment of plaintiff’s father, the situation of his residence with respect to the tracks, depot, and tank, the custom and practice of the plaintiff, her father, and members of his family traveling along- and across the tracks to and from the water tank to obtain water, the company’s knowledge thereof, the negligent operation of the train without warning notice or signal, the defendants’ failure to observe the presence of plaintiff “at said time and place, and to operate said engine and ears with reference thereto, under the conditions attending the custom, and the practice of the use permitted to be made of said tracks by plaintiff and others, as aforesaid,” the collision and injury, and the failure to stop the train upon knowledge that the plaintiff had been struck and was dragged, were all alleged. We think the complaint contains sufficient averments-of facts to show that in the operation of trains and cars at the place in question a legal duty was imposed on the company and its agents and servants to use ordinary care to observe a lookout for the presence of persons who-, under the circumstances, might naturally be expected to be about the station and tank, and to give timely signals and warnings of the movements and approach of cars and trains. As bearing on that duty, it was proper to show the customary use that had been made of the premises, not only by the plaintiff, her father, and members of his family, but also' by others on similar occasions and under similar circumstances, without direct allegations that others had so used1 the premises. The facts and circumstances that were alleged were averred to show that a legal duty was imposed on the defendants, in the operation of cars and trains about the station and water tank, to use care and to observe a lookout for the presence of those who might naturally be expected to be about the station and tank, and to give them signals and warnings of the approach of trains and cars, and the evidence which was objected to and received but related to that duty. This is not a case where facts are alleged showing a definite or precise duty to use a particular kind or degree of care, and where evidence was received showing a different or other duty, or different or other care. The evidence objected to was evidence tending to show the particular and precise duty and care alleged. We think no error was committed in receiving it.

At tbe conclusion of plaintiffs evidence, the defendants requested a direction of a verdict in their favor, on the grounds that there is no evidence to show (1) that any duty was imposed) on the defendants in the operation of cars and trains to observe a lookout for persons about the station and water tank, or to give signals and warnings; (2) that the person operating the train, in the exercise of ordinary care, could have known or discovered the presence of plaintiff; (3) that the defendants, or either of them, were negligent; and (4) that the evidence conclusively shows that the plaintiff was guilty of contributory negligence.

Upon the facts heretofore referred to, we think a duty was imposed on the defendants in the movement and operation of the train, under the circumstances, to use ordinary care in observing a lookout, and to discover the presence of persons who might naturally be expected to be about the station and water tank, and to give timely warnings or signals of the approach of the train. We also think there is evidence to show that that duty was negligently performed. Upon the evidence the jury was justified in finding that Jensen, in operating and switching the train, did not use ordinary care in observing a lookout, and that he gave no signal or warning of the movement and approach of the train, and that ordinary care, under all the circumstances, required him to do so.

We are not prepared to say that the plaintiff was guilty of negligence as matter of law. We think the question was one of fact for the jury. Her conduct in that regard is to be measured by that of the ordinary child of her age, intelligence, and experience. Wheri. she first approached and crossed the tracks, she looked for approaching trains. She, in taking the buckets to the depot for her father, who was expected to be on the train about to arrive from the quarry, was rightfully about the premises. She saw the train come in. She saw it stop, and the train crew leave it. She was to.the south of the tracks, near the depot, expecting and looking for her father. For that purpose she stepped close to the south rail of the south track, and was looking to the west — the direction from which her father was expected to come. She was then in a position where she could not see the work train. The last she saw of it, it was standing on a track to the north of her. Without notice or warning, Jensen propelled it to the east, switched it to another track, near where the plaintiff was, and, without warning or notice, propelled it towards her and struck and dragged her twenty or thirty feet. We think plaintiff’s negligence, like that of the defendants, was one of fact for the jury.

The defendants requested the court to charge:

“The court charges you that the defendants had the right to assume and act on the assumption that the track at the point of said accident was. clear, and that no one would be trespassing thereon. Accordingly, neither of the defendants was under any duty to watch or keep a lookout for a mere trespasser at said place, unless the said Jensen, who was then and there operating said train, had actual knowledge or notice of the presence of such trespasser. The court charges you that the rule in this respect is the same in the case of children of tender years as in the case of adult persons.”

The court refused the request, and charged:

“The court charges you that, if you find by a preponderance of the evidence in this case that the place a.t which the plaintiff was injured was a place which, by reason of its situation and the conditions surrounding it, and the usage made of it to the knowledge of the defendants, as shown by the testimony, was such a place that the presence of people thereat might be reasonably anticipated by the defendants in this action, then you are instructed that the defendants were under a duty, in operating engines, cars, and trains thereat, to be on the lookout for such people at said place, and' to give timely warning of the approach of trains thereat, and that the failure to do so on the part of the defendants, if you find by a preponderance of the testimony there was such a failure, would constitute negligence; and if you further find, by a preponderance of the evidence, that such failure was the proximate cause of the injury to the plaintiff in this action— that is to say, if you find, by a preponderance of the evidence, that except for such failure the plaintiff would not have been injured — then the court charges you that the plaintiff would be entitled to recover in this action, unless you find that she was guilty of contributory negligence- (that is, such negligence that except for it the plaintiff would not have been injured) ; or unless you find that, notwithstanding such contributory negligence on the part of the plaintiff, the defendants discovered the plaintiff in a position of peril in time, by the exercise of ordinary care upon their part, to have prevented the injury to the plaintiff, and that such failure to exercise ordinary care on the part of the defendants was the proximate cause of the injury to the plaintiff (that is, that except for such failure plaintiff would not have been injured).”

Complaint is made of this. Under the facts, the plaintiff was neither a trespasser nor a bare licensee. The duty and care which the defendants owed her are not to be measured by such a relation. The request was properly refused. The further criticism made of the charge pertains to the latter portion, and which relates to the last chance doctrine. It is urged there is no evidence to justify the submission of the case on such a theory. The testimony of the plaintiff’s brother, the continuing duty of Jensen to observe a reasonable lookout to discover persons who might be expected to be about the depot and premises, and his clear view of the track in advance of the moving train, rendered the charge .applicable.

We think the judgment of the court below ought to be affirmed'. It is so ordered. Costs to respondent.

FRICK, C. J., and McOARTY, J., concur.  