The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1908-11-24

In sweeping opinion handed down
Monday. a paragraph Of which Is IN
corporatcd at the head of this column
the supreme court reversed the Judgment
In favor Of the plaintiff. OF Judge Thomas
d Lewis Of the third district court. I'm
the case OF :. J. Palmer against the
Oregon Short Line Railway company.
and rcmanded the case TO the lower court
for new trial. Tho opinion was written
by Justice Frlck and concurrcd in by
Chief Justice McCarty, Justice Straup,
however dissenting.
The action was brought 10 recover
900 damages caused by the alleged
negligence of the railway company. on
the afternoon of August 49, l9Ol, ram
er's o-ycar-old son wandered onto the
railway tracks near Topaz. Bannoch
county Idaho. just across the Utah hne.
fell asleep, and was run down ny pas
seuger train and killed
The doctrine OF the famous "turntable'
cases does not apply. 1t Is held by the SUI
preme court, for the reason that the
accident occurred in a country district
sparsely settled The evidence showed
that the lad was killed several hundred
feet from u crossing, formerly fenced,
but made open about November 1903, at
the request of the few inhabitants OF the
minutes late and fW that reason was
probably travelling at higher rate OF
speed than usual The engineer signaled
for the crossing some distance west or
served an object on the track inside the
north rail. 1t looked Ike a bundle OF
weeds or old clothes and the engineer dld
not slaclSen speed, When within sixty
feet of the object the engineer discov-
cred that the object was boy, He shut
off the steam. put on his brakes, and re-
versed his engine. but the momentum
OF the train carried Il 300 feet beyond
the place where the child was struck,
Tests Are Made.
Track was straight at the point where
the accident occurred and the day was
clear, The child was dressed In drab-
colored clothes. Aftcr-tests showed that
2-year-od child was discernible upon
the track 500 feet away and could be rec
ogn!zed as such 500 feet away, and these
facts were submitted I'm evidence. The
trial court overrulcd a motion for nom
suit and refused to direct verdict in
favor OF the railway company. y verdict
for Palmer was rendered and the railway
company appealed.
After holding that the doctrine OF the
"tuvntablc" cases does not apply in this
case, for the reason that railway tracks
In an open country neither attract nor
allure, and moreover that trains must be
operated at considerable speed TO meet
the public demands. In thickly populated
districts railway companies must eXer-
else care. but in the open ountry II may
assume that, after warming an adult VIII
leave the place of danger. \ child may
not realize danger. but il is a general rule,
recognized by all courts where no stall
utes provide TO the contrary. that outside
of the cities and towns railway compa-
nies may act upon the assumption that
the track Is clear and open and that tres
passers will not put themselves In the
way OF trains. Tho railway need not
anticipate that anyone VIII commit tres
pass, and the mere fact that there are
occasional trespasserS does not change
the rule. il may be that where long
and continued use is claimed by one side
and denied by the other that the court
may submit the question OF care to the
where
OF determining. under all the facts wheth-
er legal duty Is created II Is solely 4
problem OF law.
Court Again Erred
The lower court erred II is believed,
in giving the instruction to the Jury that
the railway company owed a duty 10 cNer-
else care and diligence to prevent the
injury to tho child OF tender years. al
though II was trespasser and should
have granted the non-sult asked for by
the railway company. in view OF the evil
dence. or have given its request FOR n
verdict in its favor In the opinion of
the higher court there is nothing TO take
the case out OF the rule or the trcSpaSscr.
No duty devolved upon the railway COM
pany 10 use even ordinary care in look
Ing out for the child. The error Of Pal
mers contention appears TO have been
the assumption that the railway company
ought TO have known what IL might have
known, that the object was n child. and
therefore in contemplation OF the law did
see. The after tests are considered OF lit
tie Importance, for the reason that Key
were made under different conditions.
Justice Straup Concurs In tho reversal
OF the judgment because OF error In the
charge to the jury, but dsscnts from the
conclusion reached that the trial court
erred in refusing 10 grant nrn-suit and
direct verdict in favor OF the railway
company. The question OF the engineers
care and watchfuincss was matter for
the jury and not one or law. Justice
Frick holds.