McCARTY, J.,
after stating the facts, delivered the opinion of the court.
Defendant requested the court to peremptorily instruct the jury to return a verdict in its favor — no cause of action— which the court refused to do. We think the court was right in refusing this instruction. Nor do we think the court erred in overruling defendant’s motion for a non-suit.
[201]*201The undisputed evidence in tbe case shows that tbe highway and crossing in question are, and for many years have been, used 4>y the people (men, women, and children) who live in that vicinity for the purpose of going to and returning from their farms, and also to drive their cows to and from' the pastures. During the season of the year in which the accident occurred the lane and crossing are almost constantly used and traveled by the people of that immediate vicinity. Under these circumstances, the defendant company was chargeable with notice of the use that was being made of the crossing, and was legally bound to use reasonable and ordinary care in the management of its trains when approaching and passing over the crossing to prevent injury to those who at the same time may happen to be traveling along the highway, and in the act of crossing the company’s tracks. In the case of Young v. Clark et al., 16 Utah 42, 50 Pac. 832, this court held that:
“Where the public in considerable numbers have been accustomed for a 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.”
The great preponderance of the evidence shows that the train on this occasion, just prior to and at the time of the accident, was being run at an unusual and high rate of speed —much greater than that of the regular passenger trains when they passed over this part of the company’s track. The engineer testified that when he saw the cow go upon the track he shut off the steam, applied the air brakes, and used every appliance at his command to stop the train, but did not succeed until it had gone from 900 to 1,000 feet. W. O. Bmudson, a witness for the plaintiff, testified that he saw the [202]*202engine strike tlie cow, and “when struck she went into the air to about the top of the smokestack, and landed down the track fifty-three steps;” that he thought the train was going fifty miles an hour at a point 160 feet south of the crossing, and after striking the boy it went down to the creamery, a distance of probably 2,000 feet. Witness W. L. Wright testified in part as follows: “I saw the cow go into the air. . . -. The cow was thrown into the air as high as the smokestack. After striking the cow, the train ran up to the creamery, a little over a quarter of a mile.” David Beuch-anan, another witness, testified in part as follows: “I saw the collision. The cow was knocked as high in the air as the top of the smokestack. . . . When the train struck, it was running at the rate of sixty miles an hour.” Under these circumstances, the question of negligence on the part of the defendant, and that of contributory negligence on the part of the plaintiff and the boy who was killed, were questions of fact for the jury to determine.
It is urged by the appellant that the proximate cause of the accident was the act of Alma Christensen, plaintiff’s son, in going so dangerously near the track as to come in contact with the engine, which, it is claimed, is sufficient of itself to preclude recovery. Whether the rate of speed here was negligence, and, if so, whether such, or the failure to give signals, or both, or some act of the child, was the proximate cause of the collision and injury, were questions of fact for the jury. (Ill. Cent. R. Co. v. Benton, 69 Ill. 174; Sauerborn v. N. Y. C. & H. R. Co. (Sup.), 23 N. Y. Supp. 478; C. A. R. Co. v. McDaniels, 63 Ill. 122.) The boy was rightfully on the highway with his cows, and when his. attention was attracted to the approaching train he at once stopped his cows, and placed himself between them and the crossing, presumably for the purpose of holding them there until the train passed by. Before the train arrived at the crossing, one of the cows broke away from him and started in the direction of the railway crossing; and the boy, acting under a natural as well as a manly impulse, not a reckless or wrongful one, started in pursuit of the animal. Up to this time he had [203]*203exercised tbe same degree of care and caution as would be expected and required of a grown person acting under tbe same or similar circumstances. In following tbe cow tbe boy did not go upon tbe track, but kept to tbe west of it. He was intent upon saving tbe cow, and bis back was toward tbe approaching train when be was struck. In order to bold that tbis last circumstance or act of tbe boy was tbe proximate e^use of tbe accident, and that tbe defendant is thereby relieved from liability for its own acts, which tbe jury must have found were negligent, we must bold, as a matter of law, that tbe boy was negligent and failed to exercise that due care for bis own safety while in pursuit of bis cow that would reasonably be expected of a boy of his age, and with bis intelligence, understanding, and experience, which tbe record shows was equal to, if- not superior to, that of tbe average boy of bis years. Nor it is well settled that a child is only required to exercise that degree of care and discretion as is reasonably expected from children of bis own age. (1 Shear. & Redf. Negligence, p. 106; Riley v. Rapid Transit Co., 10 Utah 428, 37 Pac. 681.) Even though we should apply tbe same legal test to tbe actions of tbe boy on 'that occasion as would ordinarily be applied, under like circumstances and conditions, to people of mature years, we are not prepared to say, as a matter of law, be was guilty of contributory negligence.
“One who, seeing bis property imperiled, hastens to protect it, and in so doing imperils bis own person, is not necessarily deprived of remedy thereby. It is bis right and duty to protect bis property so long as be can do so without recklessly exposing himself to injury.” (1 Shear. & Redf. Neg., p. 123; Rexter v. Starin, 13 N. Y. 601; Wasmer v. Delaware R. Co., 80 N. Y. 212, 36 Am. Rep. 608; North, Pa. R. Co. v. Kirk, 90 Pa. 15.)
As to whether tbe boy used that same degree of caution and prudence for bis own safety as would be expected of children of bis age, experience, and intelligence, under the [204]*204same or similar conditions, was, under tbe circumstances' of this case, a question for the jury ■ to determine. And even if it be assumed tbat be saw or beard the approaching train before be started after tbe cow, yet there is no evidence to show tbat be knew of tbe rate of speed tbe train was being run at tbe -time, or as to its close proximity to tbe crossing. It is conceded tbat when be was struck by the engine be was at one side of tbe track. And for aught tbat appears from tbe record, be may have been in tbe act of getting away from tbe train and out of danger, but, on account of tbe high rate of speed it was being run, was unable to do so.
Free access — add to your briefcase to read the full text and ask questions with AI
McCARTY, J.,
after stating the facts, delivered the opinion of the court.
Defendant requested the court to peremptorily instruct the jury to return a verdict in its favor — no cause of action— which the court refused to do. We think the court was right in refusing this instruction. Nor do we think the court erred in overruling defendant’s motion for a non-suit.
[201]*201The undisputed evidence in tbe case shows that tbe highway and crossing in question are, and for many years have been, used 4>y the people (men, women, and children) who live in that vicinity for the purpose of going to and returning from their farms, and also to drive their cows to and from' the pastures. During the season of the year in which the accident occurred the lane and crossing are almost constantly used and traveled by the people of that immediate vicinity. Under these circumstances, the defendant company was chargeable with notice of the use that was being made of the crossing, and was legally bound to use reasonable and ordinary care in the management of its trains when approaching and passing over the crossing to prevent injury to those who at the same time may happen to be traveling along the highway, and in the act of crossing the company’s tracks. In the case of Young v. Clark et al., 16 Utah 42, 50 Pac. 832, this court held that:
“Where the public in considerable numbers have been accustomed for a 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.”
The great preponderance of the evidence shows that the train on this occasion, just prior to and at the time of the accident, was being run at an unusual and high rate of speed —much greater than that of the regular passenger trains when they passed over this part of the company’s track. The engineer testified that when he saw the cow go upon the track he shut off the steam, applied the air brakes, and used every appliance at his command to stop the train, but did not succeed until it had gone from 900 to 1,000 feet. W. O. Bmudson, a witness for the plaintiff, testified that he saw the [202]*202engine strike tlie cow, and “when struck she went into the air to about the top of the smokestack, and landed down the track fifty-three steps;” that he thought the train was going fifty miles an hour at a point 160 feet south of the crossing, and after striking the boy it went down to the creamery, a distance of probably 2,000 feet. Witness W. L. Wright testified in part as follows: “I saw the cow go into the air. . . -. The cow was thrown into the air as high as the smokestack. After striking the cow, the train ran up to the creamery, a little over a quarter of a mile.” David Beuch-anan, another witness, testified in part as follows: “I saw the collision. The cow was knocked as high in the air as the top of the smokestack. . . . When the train struck, it was running at the rate of sixty miles an hour.” Under these circumstances, the question of negligence on the part of the defendant, and that of contributory negligence on the part of the plaintiff and the boy who was killed, were questions of fact for the jury to determine.
It is urged by the appellant that the proximate cause of the accident was the act of Alma Christensen, plaintiff’s son, in going so dangerously near the track as to come in contact with the engine, which, it is claimed, is sufficient of itself to preclude recovery. Whether the rate of speed here was negligence, and, if so, whether such, or the failure to give signals, or both, or some act of the child, was the proximate cause of the collision and injury, were questions of fact for the jury. (Ill. Cent. R. Co. v. Benton, 69 Ill. 174; Sauerborn v. N. Y. C. & H. R. Co. (Sup.), 23 N. Y. Supp. 478; C. A. R. Co. v. McDaniels, 63 Ill. 122.) The boy was rightfully on the highway with his cows, and when his. attention was attracted to the approaching train he at once stopped his cows, and placed himself between them and the crossing, presumably for the purpose of holding them there until the train passed by. Before the train arrived at the crossing, one of the cows broke away from him and started in the direction of the railway crossing; and the boy, acting under a natural as well as a manly impulse, not a reckless or wrongful one, started in pursuit of the animal. Up to this time he had [203]*203exercised tbe same degree of care and caution as would be expected and required of a grown person acting under tbe same or similar circumstances. In following tbe cow tbe boy did not go upon tbe track, but kept to tbe west of it. He was intent upon saving tbe cow, and bis back was toward tbe approaching train when be was struck. In order to bold that tbis last circumstance or act of tbe boy was tbe proximate e^use of tbe accident, and that tbe defendant is thereby relieved from liability for its own acts, which tbe jury must have found were negligent, we must bold, as a matter of law, that tbe boy was negligent and failed to exercise that due care for bis own safety while in pursuit of bis cow that would reasonably be expected of a boy of his age, and with bis intelligence, understanding, and experience, which tbe record shows was equal to, if- not superior to, that of tbe average boy of bis years. Nor it is well settled that a child is only required to exercise that degree of care and discretion as is reasonably expected from children of bis own age. (1 Shear. & Redf. Negligence, p. 106; Riley v. Rapid Transit Co., 10 Utah 428, 37 Pac. 681.) Even though we should apply tbe same legal test to tbe actions of tbe boy on 'that occasion as would ordinarily be applied, under like circumstances and conditions, to people of mature years, we are not prepared to say, as a matter of law, be was guilty of contributory negligence.
“One who, seeing bis property imperiled, hastens to protect it, and in so doing imperils bis own person, is not necessarily deprived of remedy thereby. It is bis right and duty to protect bis property so long as be can do so without recklessly exposing himself to injury.” (1 Shear. & Redf. Neg., p. 123; Rexter v. Starin, 13 N. Y. 601; Wasmer v. Delaware R. Co., 80 N. Y. 212, 36 Am. Rep. 608; North, Pa. R. Co. v. Kirk, 90 Pa. 15.)
As to whether tbe boy used that same degree of caution and prudence for bis own safety as would be expected of children of bis age, experience, and intelligence, under the [204]*204same or similar conditions, was, under tbe circumstances' of this case, a question for the jury ■ to determine. And even if it be assumed tbat be saw or beard the approaching train before be started after tbe cow, yet there is no evidence to show tbat be knew of tbe rate of speed tbe train was being run at tbe -time, or as to its close proximity to tbe crossing. It is conceded tbat when be was struck by the engine be was at one side of tbe track. And for aught tbat appears from tbe record, be may have been in tbe act of getting away from tbe train and out of danger, but, on account of tbe high rate of speed it was being run, was unable to do so.
During tbe progress of the trial the following questions were asked of tbe plaintiff, which the court permitted him to answer: “Do you know, Mr. Christensen, whether others were in the habit of sending their cattle down over tbat same road to pasture at tbat time ?” “How many different parties were sending their cattle down there at tbat time when you were sending your down?” To these questions, and others of like character, defendant objected on tbe ground tbat they were irrelevant and immaterial. Tbe ruling of the court in admitting this testimony is now assigned as error. This was proper evidence, -as it tended to show for what purpose and to what extent tbe highway was used at tbe time of and prior to the accident.
Evidence was also introduced which showed tbat there were no gates at this crossing, and that no flag or flagman was kept there to warn people who used tbe highway of tbe approach of trains. To this evidence defendant objected on tbe same grounds stated in tbe objections interposed to tbe questions just referred to, and for the reason that there was no allegation in the complaint charging negligence because of the defendant’s failure to keep flagmen stationed at the crossing. While the defendant’s failure to keep a flagman and to maintain gates at the crossing was not negligence, yet it was not error for the court to admit evidence showing that there were neither flagmen nor gates there, as such evidence, in connection with proof of the conditions respecting the num[205]*205ber of people who used this highway, whether adults or children, the purposes for which it wasr used, its locality with reference to a populous community,'-or otherwise, would have a bearing on the question as to whether qr not the defendant xwas negligent in running its train at the unusual and high ráte'of speed which the weight of the evidence tends to show it ’was' run on that occasion. This testimony was not admitted to prove negligence on the part of the defendant in not having gates or a flagman at- the crossing. The fact of •the presence or absence of a gate or flagman may be proven as a circumstance among others surrounding the crossing, and by which the degree of care requisite 'in the handling and running of the train may be affected, and whether, in view of. the presence or absence of a flagman or gate, among all other circumstances, the train was moved and ran with prudence or negligence. Nor it may well be considered by the jury that, at a crossing so greatly and almost continuously used by the public as was here shown by the evidence, a greater amount of vigilance and care was to be observed by the servants in charge of the train in'respect to signals, rate of speed, and handling of the train, in the absence of gates and a flagman, than would be required with the presence of gates and a flagman. In other words, a certain speed might not be considered by the jury as negligence at a crossing with, the presence of gates and a flagman to warn the traveling public, while that same speed might be considered negligence at the crossing when there were no gates or a flagman. Nor this purpose the evidence was admitted,- and for such purpose was competent. (Chicago R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513; McGrath v. R. Co., 63 N. Y. 522; Reed v. R. Co. (Sup.), 87 N. Y. Supp. 810; Abbott et al. v. Dwinnell, 74 Wis. 514, 43 N. W. 496; Heddles v. R. Co., 74 Wis. 239, 42 N. W. 237; Hoye v. R. Co., 67 Wis. 1, 29 N. W. 646; Houghkirk v. D. & H. Canal Co., 92 N. Y. 227, 44 Am. Rep. 370.)
The trial court in this case, at the time the evidence conn plained of was admitted, restricted it to the acts of negligence alleged in the complaint. 'The court said:
[206]*206“The danger of admitting the testimony is, it might be taken by the jury as evidence of some act of negligence that is not within the issues of this case; that there may have been negligence upon the part of the company in not maintaining gates or watchmen there as independent matter, apart from the negligence that is alleged in the complaint. Limiting and restricting the testimony to a consideration of whether the acts of negligence as'charged in the complaint existed or not, the testimony, I think, is admissible; but the jury should observe the distinction, and not consider it as proof of some independent act of negligence that is not charged here. With that limitation and restriction, I think the testimony may be admitted. As before explained, it is only admitted for the bearing it may have, if any, upon the acts of negligence alleged.”
The court also gave the jury the following instruction:
“Before the plaintiff is entitled to recover in this action, he must show by a fair preponderance of the evidence negligence on the part of the railroad company in the particulars alleged in the complaint and he must further show by the same amount of evidence — that is, by a fair preponderance — that the negligence alleged in the complaint was the proximate cause of the injury complained of.”
The court having thus carefully admonished the jury at the time the evidence was admitted, and later on, in its general instructions, limited the testimony and plaintiff’s right to recover to the acts of negligence alleged in the complaint, we do not think the jury could have been misled, or the rights of the defendant in any way prejudiced, by the admission of the testimony respecting the absence of flagmen and gates at the crossing.
[207]*207Tbe judgment of the district court' is affirmed, with costs.
STEAUP, J., concurs.