The plaintiff, a child 1 year and 11 months of age, by her guardian brought this action to recover damages alleged to have been sustained by her through the negligence of the defendant. The case was tried to the court and a jury, and resulted in a verdict in favor of the defendant. The plaintiff appeals.
The assignments are numerous. They chiefly relate to the court's charge, and to conduct of counsel for defendant arguing matters to the jury which, as claimed by the plaintiff, were withheld from the jury. We shall refer to only so much of the pleadings and evidence as is deemed necessary to the assignments considered by us.
The child was run over and injured on the defendant's railroad track by a train operated by the defendant. The accident occurred in a little town or settlement called Spring Canyon, in Carbon county, Utah. The theory of the complaint is that, because of numerous dwellings, apartments, cottages, a schoolhouse, a church, post office, and a store and bakery in close proximity to the track, and of a long custom or habit of persons and children living in the vicinity of the accident, and of others, using the track as a footpath in going up and down and across the track with the *Page 371 knowledge and without objection of the defendant, it, among other things, became and was the duty of train operatives, in approaching the settlement and operating trains through it, to observe a lookout for the presence of persons and children upon and along the track in such close proximity thereto as likely to be struck by a moving train and give timely warning of the approach of the train, but that on the day in question the train operatives, in operating a train, negligently failed to observe a reasonable or any lookout for such purpose, failed to ring the bell or give any warning of the approach of the train, and negligently ran over the plaintiff, and so injured her as to necessitate the amputation of both her legs, one above and the other below the knee.
The defendant, by its answer, denied the alleged negligence, averred that the plaintiff was guilty of contributory negligence, and that the parents of the plaintiff were guilty of negligence in suffering and permitting the child "to be on and about the tracks of the defendant, where the said child had no right or license to be, and where it was known by said parents that such child was in great and imminent danger of being struck by engines, cars, and trains."
Much evidence was given by the plaintiff in support of the theory stated in the complaint. In such respect evidence was given to show that the defendant's railroad runs through a winding canyon in the mountains through the small towns or settlements of Peerless, Spring Canyon, and Standardville, but a short distance apart. A wagon road or highway also runs through the canyon parallel with the railroad track. About 100 families live at the settlement of Spring Canyon, who live in apartments, cottages, and other dwellings facing the highway, and between the highway and the railroad track, the outbuildings in the rear being within 10 or 12 feet from the track. The parents of the plaintiff lived in one of the apartments, consisting of 10 apartments. On the other side of the track and a little down the canyon was a schoolhouse, a church, a post office, *Page 372 a store, a bakery, and other buildings. There were no sidewalks. The railroad track was open and unfenced.
At Spring Canyon the wagon road was narrow, at places only of sufficient width to permit two automobiles or vehicles to pass. The surface of the highway on either side was so rugged as not to admit of travel by pedestrians without considerable difficulty. For such reason, and because of the narrowness of the highway and of numerous automobiles traveling it, the highway was considered dangerous to pedestrians, especially children, and thus to a large extent was avoided by them. So pedestrians, including children, living at Spring Canyon and in that vicinity, instead of using the highway, used the defendant's railroad track in going up and down the canyon, and in crossing it to go to the schoolhouse, church, post office, store, and bakery. Most of the men living at Spring Canyon and in that vicinity worked in coal mines near by and in going to and from the mines also used the railroad track as a footpath. So, also, did others in going up and down the canyon. Such habit or custom was general, and existed for many years, as testified to by numerous witnesses on behalf of the plaintiff, and that such use was so made of the track with the knowledge of the defendant, and of its train operatives and without objection from any one.
Evidence was also given to show that at times children played about the track or in such close proximity thereto as to be in danger of being struck by passing trains, especially about a push or hand car left by the defendant just off and along the side of the track and at a sort of a trail leading in the direction of the apartments or houses below. Many of the children of parents living in the apartments and cottages played in the rear of them and in close proximity to the railroad track. Testimony was given to show that the children had no other outdoor place to play.
On the day in question, August 23, 1926, the father of the plaintiff, in the morning, left the apartment house where the parents of the child resided to go to work, as was his custom, *Page 373 in a coal mine near by up the canyon. His family consisted of his wife and two children, the plaintiff and a boy four or five years of age, and a maid. The mother, as she and her husband testified, was ill. In the afternoon of the day in question, and about a half hour before the accident, the mother, who with the plaintiff, was then on the porch, felt faint, as she testified, left the porch with the plaintiff, and went inside to lie down. She thought the maid was in the kitchen or about the premises. The mother, as she testified, as she lay down "dozed off" a short time. There is a controversy as to whether the maid then was about the apartment, or whether she had gone to one of the neighbors near by. In a short time the child strayed from the apartment and went on the railroad track near or opposite the push or hand car, where other children were then playing, and stood, in the middle of the track, when she was struck and run over by the train, between 4 and 5 o'clock in the afternoon on a clear day.
The principal use of the defendant's railroad was to haul coal from mines along the canyon near Standardville, Spring Canyon, and Peerless and other places and to serve persons living in settlements along the canyon.
On the day in question the defendant was carrying down the canyon from Standardville an engine and two empty box cars. The purpose of the trip was to carry the box cars from Standardville to Spring Canyon, where they were to be left, and then the engine to return to Standardville and later bring down loaded cars. In bringing the two box cars down the canyon, the engine was operated backward in front of the two box cars; that is, as the train came down the canyon, the tender of the engine was in advance of the engine running backward, the the two box cars in the rear. As the train thus came down the canyon, the fireman was on the left and the engineer on the right side, facing the front of the engine and the box cars. About 400 feet up the canyon was a curve in the track, the outside of the curve being on the engineer's side. *Page 374
As the train approached the curve and was rounding it the view of the engineer was obstructed because of the curve, but after the train passed the curve the engineer had a view of the track in the direction in which the train was moving for a distance of about 335 feet to the place where the child was struck. The view on the fireman's side was not obstructed by the curve. He had a better view of the track, and for a longer distance, than had the engineer. On top of the rear box car were the head and rear brakemen and a car inspector. They also had a better view down the track than had the engineer, and as good a view as had the fireman. The train was moving down the track at a speed of about 10 miles an hour. Evidence was given to show that the train could have been stopped within a distance of 35 feet, and that no whistle was sounded or bell rung as the train approached.
The rear brakeman testified that he discovered the child standing on the track between the rails 45 or 55 feet ahead of the tender, just when the rear box car on which he was standing was on or leaving the curve, but that the engine then was on a straight track; that he called the attention of the head brakeman to the situation; that both, as loud as they could, called several times to the engineer and fireman to stop the train, that a child was on the track; that the brakeman also pounded the box car with clubs to attract the attention of the engineer and fireman, but to no avail because the noise of the engine, as they testified, prevented hearing the shouting and pounding of the brakemen.
Other witnesses testified that they were in one of the apartments and heard the outcry of the brakemen and the noise made by them; that they ran out of the apartment and saw the child on the track about 175 feet in advance of the train; that they tried to attract the attention of the fireman, they being on his side, but saw nothing of the fireman in the cab; that he did not have his head out of the cab window, and that they were unable to attract the attention of either the fireman or the engineer. Some of the witnesses *Page 375 testified that the child was 200 or 250 feet in advance of the train when the brakemen began to shout. Other witnesses testified to unsuccessful efforts made by them to attract the attention of the engineer and fireman, and to stop the train before running over the child. The train ran about 400 feet after hitting the child. before the attention of the engineer and fireman was attracted and the train stopped, and, when it was stopped, neither knew anything of the happening of the accident. Evidence was also given to show that the seats of the fireman in the engine cab and of the engineer were nearly on a level with the top of the box cars.
The fireman testified that as the train came around the curve he was on his seat looking in the direction the train was going; that he saw nothing of the child, but saw a little boy farther up the track, running towards the track and placing something on the rail, then go back and sit on a rock or on an embankment about 15 feet from the track; that when the train came along the fireman shouted to the boy to stay away; that he looked around and saw some one chopping wood at the rear of one of the apartments or houses, and then looked down the track, but did not see anything of the child; that the next that attracted his attention was two men standing in the center of the track "waving us down, and I hollered to the engineer that we were flagged and he proceeded to stop," and on inquiry as to what was the matter they learned of the accident. Although the fireman, on questions propounded to him, testified with respect to his duties on the engine at the time in question, yet did not testify that he, during any of such time, was engaged in the performance of duties which prevented his looking down the track or observing signals from the brakemen.
The engineer testified that in rounding the curve his view down the track at the point of the accident was cut off because of the tender and tank in front of him, and that he was not able to see anything in the center of the track ahead of him closer than 134 feet; that, while his view was *Page 376 shut off, the view of the fireman was improved, because he was on the inside of the curve and could see very close to the front of the train; that when the engineer's view was shut off from the track it was the duty of the fireman to keep a lookout along the track for danger, and that at the time in question the fireman was on his seat on his side of the cab; that he heard no shouting or pounding of the brakemen, and that when the fireman told him they were flagged he stopped in about two and a half car lengths, but on an emergency could have stopped in 55 feet and making a test could have stopped in less distance than that; and that until the train was stopped he had no knowledge of the accident.
There does not seem to be any dispute in the evidence that it was the duty of the fireman to observe a lookout; that in approaching the place of the accident the fireman had a clear view of the track, and that the engineer and fireman, had they looked, had a view of the brakemen and an opportunity to see signals given by them. The brakemen, however, testified that it was not their duty to observe a lookout along the track; that such was the duty of the engineer and fireman.
The superintendent of defendant, residing at Provo, Utah, among other things testified that the railroad track at places divided the canyon as the track extended through the towns of Peerless, Spring Canyon, and Standardville, and that there were dwellings on both sides of the track; that at Spring Canyon a majority of the residences were on the left side going up the canyon and Spring Canyon proper, including the schoolhouse, a church, post office, store, mining office, and other buildings, on the right side, and that the railroad track had to be crossed at different places in going from one side to the other; that there was not anything to be done to keep people from crossing the track; that they crossed it out of necessity to carry on their business; that children had to cross the track to go to and *Page 377 from school and that there was no other way for them to go except to cross the track.
The witness was asked by counsel for defendant: "What is the rule in regard to trespassers on the property of the Utah Railway Company?" The witness answered: "The rule is that trespassing is not allowed." He further testified that he always instructed employees not to allow trespassing on their property, that he had so instructed the trainmen, and that he had made efforts himself to keep children away; that his business took him to Spring Canyon at least once a week and sometimes oftener, and that whenever he found children on or near the track in the vicinity of the accident he invariably enforced the rule regarding children trespassing, and insisted that they keep off the track whenever he saw them on the track; that he had solicited the support and co-operation of the superintendents of schools at Peerless, Spring Canyon and Standardville to keep children off the track, and on one occasion asked the sheriff of the county to assist him but what the superintendents or the sheriff did in such respect is not shown.
No other evidence was given to show that any other or different objections were made to the use of the railroad track as testified to on behalf of plaintiff. The foregoing is a substance of all the evidence bearing on the assignments about to be considered.
At the conclusion of the evidence the defendant interposed a motion for a direction of a verdict in its favor on the grounds: Want of sufficient evidence to show the defendant was negligent or that the injuries were due to any negligence on the part of the defendant; that the child was a trespasser on the defendant's right of way, and that there was not sufficient evidence to show that the child was "actually discovered" in a position of danger by the defendant in time to have avoided the injury; that the evidence was insufficient to show that the track, with the knowledge and acquiescence of the defendant, had been used by children *Page 378 as a playground, and, though it be assumed that the track was used as a footpath by pedestrians, yet the plaintiff was not making any such use of the track; that though the defendant was required to anticipate the presence of persons on the track, or to keep a lookout, yet the presence of the plaintiff could not have been discovered in time to have avoided the accident; that the evidence was insufficient to justify a finding that the defendant, in the exercise of reasonable care could have discovered the plaintiff in a position of danger in time to have brought the train to a stop and avoided the accident.
The motion was overruled. Thereupon the court, at the request of the plaintiff, among other things, charged the jury:
(7) "You are instructed that it is undisputed in the evidence that at the place of the accident the tracks of the defendant were unfenced and that there were a large number of homes, residences, and other buildings situated in close proximity to said railroad tracks, and that for a number of years prior to and up to the time of the accident said tracks had been used by pedestrians for the purpose of walking and going thereon, and that there were a great number of small children residing and living in said vicinity and in close proximity to said railroad tracks, and that said children were in the habit of going in and upon said tracks and along and upon the same, all of which facts were known to the defendant railroad company. You are therefore instructed that, in operating its trains in the vicinity of the accident, the defendant was bound to anticipate that there might be persons upon its tracks at said point, and you are therefore instructed that it was the duty of the defendant railroad company and those in control of its trains to use reasonable diligence and precaution to prevent injury to such persons and children who might be on its tracks at said point and to keep a reasonable lookout for such persons on such tracks."
(8) "You are further instructed that it is admitted that on August 4, 1926, the defendant was operating an engine and empty box cars down its tracks at the point mentioned in evidence, and that the engine was moving backwards ahead of the box cars, and that said engine struck and ran over the plaintiff. If, therefore, you find from the evidence that the servants of the defendant, in charge of the engine at the time of the injury complained of, could have discovered by the *Page 379 exercise of reasonable care, under the circumstances, the danger of the infant plaintiff in time to have avoided injuring her, but that the defendant's said servants negligently failed to use reasonable diligence and precaution to discover plaintiff on said tracks, and carelessly failed to use reasonable diligence and precaution to prevent injuring plaintiff, and as a result of such failure, if any, the defendant railroad company ran the engine against and upon the infant plaintiff, inflicting the injuries complained of, then you should return a verdict for the plaintiff."
(9) "You are instructed that in this action plaintiff is seeking to recover damages for injuries which she has sustained, in her own right and for her own benefit. In such an action, brought by a child in her own right and in her own behalf, the negligence of the child's father and mother, or either of them, can in no wise affect the right of the child to recover. So, even if you find from the evidence that the plaintiff's father and mother, or either of them, were guilty of negligence in not preventing plaintiff from going on the defendant's railroad tracks, such negligence of the father or mother, or both of them, cannot be imputed to the plaintiff, and does not constitute any defense to plaintiff's right to recover, if any."
(10) "Another defense set up by the defendant is that the injuries to plaintiff were caused by reason of the negligence of her parents in permitting the said minor child to be on or about the tracks of the said defendant. As to said defense you are instructed that there is absolutely no evidence of any negligence on the part of the parents in this regard, and further, even though there was such negligence, the same could not be imputed to the minor child, and you should disregard that defense in making up your verdict."
(11) "One of the defenses set up by the defendant is that the plaintiff, Elva M. Jensen, was guilty of negligence which proximately contributed to her injuries, and you are instructed that, as a matter of law, a child of the age of plaintiff cannot be guilty of negligence, and you should disregard that defense in making up your verdict."
The court, at the request of the defendant, further charged the jury:
(13) "You are instructed that it is not negligence for a fireman on a locomotive to attend to duties such as are necessary for the operation of the locomotive, even though such attention to such duties makes it impossible for the time being for such fireman to keep a lookout in the direction that the train is moving."
(14) "There is no greater or different duty owing by a property owner to discover the presence of an infant trespasser than an adult *Page 380 trespasser. If an infant goes upon the property of another without right, such infant is as much a trespasser as an adult would be under the same circumstances."
(15) "You are instructed, if an adult or an infant trespasses upon the property of another, and the presence of such trespasser is actually discovered by the property owner, or by the exercise of reasonable care should have been discovered, that the duty owing to such trespasser by such property owner is to use ordinary and reasonable care toward such trespasser."
(16) "You are instructed that the defendant in this case is under no duty or obligation to the plaintiff to build a fence along its property for the purpose of keeping the plaintiff from going onto the defendant's track."
(17) "If you find from a preponderance of the evidence that the plaintiff, prior to going on the track, was in such a position that she could be seen, and that when she went on the track she could not be seen by the operators of the train, then their failure to see the plaintiff would not be negligence."
(22) "You are instructed that, if an adult or a child goes onto the property of another without any right so to do, such adult or child is a trespasser in so doing, whether the property in question belongs to a private person or a railroad company."
(23) "If you find from a preponderance of the evidence that the plaintiff was a trespasser at the time and place in question, and if you further find that the brakeman on the rear car of the train saw the plaintiff on the track in time, so that the train could have been stopped, if the engine operators had at that instant known of the presence of the child, nevertheless there would be no lack of due care on the part of the defendant or its employes or agents, unless you should further find that the warnings of the brakeman were actually heard or seen, or in the exercise of ordinary and reasonable care should have been heard or seen, by the operators of the engine in time so that they could have avoided the accident, or that the operators of said engine, by the exercise of ordinary and reasonable care, could otherwise have discovered the presence of the said plaintiff on said track in time so that they could have avoided the accident."
(28) "You are instructed that, if an adult, or infant traspasses upon the property of another, and the presence of such trespasser is actually discovered by the property owner, the only duty to such trespasser by such property owner is to use ordinary and reasonable care toward such trespasser." *Page 381
The appellant urges that the charge given at the request of the defendant is in conflict with paragraphs 7 and 8 of the charge given at the request of the plaintiff, and in such particular invokes the rule stated in Konold v. Rio Grande W.Ry. Co., 21 Utah, 379, 60 P. 1021, 81 Am. St. Rep. 693, that the giving of inconsistent instructions is error and sufficient ground for a reversal of the judgment, because, after verdict, it cannot be told which instruction was followed by the jury, or what influence the erroneous instruction had on their deliberations, and, as stated in Randall, Instructions to Juries, § 537, that where instructions of the successful party state an erroneous rule, and those of the defeated party state the rule correctly, the only presumption permissible is that the jury disregard the true rule for the false; that an error of an instruction presenting a wrong theory of the case is not cured by other instructions announcing a right theory; and that, where instructions are in irreconcilable conflict, or so conflicting as to confuse or mislead the jury the rule requiring instructions to be read together has no application.
On the other hand, the defendant contends that the charge is not in conflict, the charge at plaintiff's request in effect being but a charge on plaintiff's theory of the case, and the charge at defendant's request on its theory, and though the charge in the particulars claimed should be held to be in conflict, yet principles of law were erroneously given in the charge at plaintiff's request, but correctly stated in the charge given at the defendant's request; and thus whatever conflict there may be in the charge was induced or created by plaintiff, and hence she may not be heard to complain of such inconsistencies of her own creation, to support which the defendant cites Wood v. Rio Grande W. Ry. Co., 28 Utah 351,79 P. 182; Pulos v. Denver Rio Grande R. Co., 37 Utah 238,107 P. 241; Connell v. Oregon S.L.R. Co., 51 Utah 26,168 P. 337.
The doctrine contended for by the defendant is of general recognition, as is shown by the cited cases. However, to apply *Page 382 the doctrine to the case in hand, it must not only be shown that the charge given at plaintiff's requests was 1, 2 wrong, but also that the charge given at the defendant's requests was right, and that on the record the jury properly could have rendered a verdict for the defendant by following the correct charge given at the defendant's request. It needs no elaboration to show that an inconsistent or erroneous charge on a material issue, the inconsistency of which is created by erroneous requests of both parties — when the requests of neither state the correct rule — may be complained of on proper exceptions and assignments by either party injured. The first question to be considered, therefore, is whether or not paragraphs 7 and 8 of the charge given at the request of the plaintiff are in conflict with the charge given at the request of the defendant. We think they are.
The charge in such respect is not fairly open to the contention that the one is merely charging on the theory of the plaintiff's case, and the other on the theory of the defendant. The charge contains two divergent and irreconcilable views as to the law applicable to the case. In the one, on the facts therein stated, the rule is announced that it was the duty of the train operatives to anticipate the presence of persons and children at the vicinity in question, and to observe a reasonable lookout for them and to use care not to injure them. Whether the charge in such respect sufficiently announces the correct rule will presently be noted. On the other hand, the charge given at the request of the defendant, without assuming any facts, and without any hypothesis, chiefly relates to ipso facto or active trespassers whose presence is not required to be anticipated, and to whom no duty is owing until actually discovered in a place of danger.
Such is the dominant thought conveyed by such portion of the charge. It is in harmony with the answer of the defendant that the child was a trespasser, to whom no duty was owing until actually discovered in a place of danger, *Page 383 the question propounded to the defendant's superintendent what the rule was as to "trespassing" on the defendant's track, and the stated grounds for a direction of the verdict. Whether, on the record, the charge in such respect is correct or applicable to the case, will also presently be noted.
The plaintiff contends that the charge given at her request is correct, and is in harmony with and supported by the cases ofYoung v. Clark, 16 Utah 42, 50 P. 832; Corbett v. OregonS.L.R. Co., 25 Utah 449, 71 P. 1065; Teakle v. San Pedro,etc., R. Co., 32 Utah 276, 90 P. 402, 10 L.R.A. (N.S.) 486;Jensen v. Denver Rio G.R. Co., 44 Utah, 100, 138 P. 1185. The defendant disputes that, and also urges that the court erred in stating in the charge, as was done, that there was no dispute in the evidence as to the facts therein assumed, and contends that the rule announced by this court in the case of Palmer v.Oregon S.L.R. Co., 34 Utah 466, 98 P. 689, 16 Ann. Cas. 229, and as announced in other cases, is here applicable, and that the rule as announced in the cases cited by appellant is not applicable.
As to the statement of the assumed facts, in paragraph 7 of the charge, that the track was unfenced, that a large number of homes and other buildings were situate in close proximity to the railroad track, that for a number of years prior to and up to the time of the accident the track had been used by pedestrians for the purpose of walking and going thereon, that there were a great number of small children residing and living in the vicinity and in close proximity to the track, that children were in the habit of going in and upon the track and along and upon the same, and that all of such facts were known to the defendant, the evidence is not in serious conflict. What, in such respect, on the evidence, chiefly divided the parties was whether or not such usage was with the consent or acquiescence of the defendant.
As to that considerable evidence was adduced by the plaintiff to show that such usage was not only with the knowledge *Page 384 of the defendant, but also with its acquiescence. As against that is the testimony of the superintendent that, whenever he saw children on the track, he warned or ordered them away, gave instructions to operatives and other employes to do likewise, and solicited the superintendents of schools to aid and cooperate with him in keeping children off the track. So the most that may be said as to any conflict in such respect is, not with respect to the use made of the track, or that such use was without the knowledge of the defendant, but whether the use was with its consent or acquiescence. But as to that the charge does not state that the evidence was without dispute, or that the use made of the track was with the consent or acquiescence of the defendant.
As is seen, paragraphs 7 and 8 of the charge are silent as to such element or issue, and therein perhaps lies the fault of such charge. To bring the case within the rule contended for by the plaintiff, it was not only essential to show that the use was with the knowledge of the defendant, but also that it was with the defendant's consent or acquiescence, or the showing of circumstances or conditions from which the defendant's consent or acquiescence might reasonably be inferred. The rule in such respect is correctly stated in Young v. Clark, supra:
"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 Jensen v. Denver Rio G. Ry. Co., supra, the court again said:
"The decreased was not a trespasser. He was making such a use of the defendant's track and right of way as had others and the public generally for a long time, openly, with the knowledge and acquiescence of the defendant and of its employes operating trains along *Page 385 such place. Train operatives, hence, were required to take notice of such usage, to anticipate the probable presence of persons on or near the track along there, and to observe a reasonable lookout for persons making such a use of the track, and timely to warn them of the approach of trains."
The same rule in effect is announced in Corbett v. OregonS.L.R. Co., supra, and in Teakle v. San Pedro, etc., R. Co., supra.
We now look to the charge given at the defendant's request. Some of them, as abstract propositions, may not be at fault, but in so far as applicable to the case are erroneous in several particulars. Most of them are at fault in stating propositions wholly unrelated and unrestricted to, and regardless of, conditions or circumstances. The proposition stated in paragraph 22, that if a child or an adult goes upon the property of another, without any right so to do, such child or adult is a trespasser in so doing, may be true or untrue as applied or related to particular conditions and circumstances. However, the rule is pretty well established that, whenever railroad train operatives are approaching places where they have reasonable grounds to anticipate the presence of persons in places of danger on or near the track, there is imposed a duty upon them, not only to use care to avoid injury after discovery in a place of danger, but also to keep a reasonable lookout and be on the alert to anticipate their presence. Notes to numerous cases cited in the case of Martin v. Hughes Creek Coal Co., 41 L.R.A. (N.S.) 267. Of course the rule is dependent upon the character, nature, and the relation of the usage and the knowledge and consent or acquiescence on the part of the railroad company or its train operatives. The trend of judicial opinion seems to be that in such case it does not so much matter whether the person injured technically be regarded a trespasser or a licensee. Perhaps confusion might be avoided if in such case the person injured while so on or using the track be regarded a licensee rather than an actual trespasser. *Page 386
Similar observations may be made as to paragraph 28 of the charge, to the effect that, if an adult or infant trespasses upon the property of another, the only duty 3-6 arising on the part of the owner is to use care after the presence of the trespasser is actually discovered. That again may be true or untrue, depending upon the particular condition or circumstance. The proposition is true under the conditions and circumstances shown in the case of Palmer v. Oregon S.L.R. Co., supra, but untrue as shown in Young v. Clark, Corbett v.Oregon S.L.R. Co., and Jensen v. Rio Grande Ry. Co., supra. This paragraph, as paragraph 22, lays down a proposition wholly unrestricted and unrelated to any condition or circumstance, and regardless of any in the case upon the evidence of either the plaintiff or the defendant. Whether on a given or assumed state of facts a person is or is not a trespasser or otherwise, generally speaking, is a question for the court. By the charge given at the request of the defendant the question of whether the plaintiff was or was not a trespasser was largely left to the jury. The only guidance which the jury had was the mere abstract statement that, if an adult or a child goes upon the property of another without right so to do, he is a trespasser. But when a person has a right to do so, or more properly speaking, when he may do so without being characterized a trespasser, as matter of law, the jury were given no guidance, and were left to determine for themselves what in their judgment did or did not constitute a right. In that, the jury were given an unbounded field. The court did not, upon any stated or assumed facts, if so found by the jury, direct them as to the legal effect thereof as to the question of trespass.
As a general rule a trial court should not leave the jury to apply mere general principles of law to a case, as here was done by the defendant's requests. The court should give the jury what the law is as applied to the facts either stated or assumed, and if so found by the jury. The rule is well settled that instructing a jury, a mere abstract or general *Page 387 statement as to the law should be avoided, and that all instructions should be applicable to evidence on either one or the other of the respective theories of the parties. Instructions which are not so applicable, though abstractly they may be correct, are not helpful to the jury, are apt to be misleading and to be improperly applied. That a proposition may be correct in a sense, and yet be inapplicable to the evidence or to the issue, is readily perceived. By the charge, or some of it, given at the request of the defendant, because unrestricted and unrelated, the jury could and may have taken the view that, though all that was testified to by the plaintiff's witnesses with respect to the use made of the defendant's track by pedestrians, adults, and children may be true, nevertheless the plaintiff, a child less than two years of age, was on the defendant's track without right or permission; that she had no right to be there, hence was a trespasser, to whom the defendant owed no duty until she was actually discovered in a place of danger.
Upon the evidence adduced on behalf of the plainiff, she, in line with the cases heretofore referred to, was entitled to a charge that the train operatives in the vicinity in question were required to anticipate the presence of persons on or along the track in such close proximity thereto as to be in danger of passing trains, and thus were required to observe a reasonable lookout for them and to use reasonable care not to injure them; and in such view and on such theory a charge that plaintiff was on the track without right, or was a trespasser, or on such assumed facts to leave the question to the jury whether she was or was not a trespasser to whom no duty was owing until actually discovered in a place of danger, was error. Such holding is not inconsistent with the cases of Palmer v. Oregon S.L.R. Co., supra, or Smalley v. Rio Grande W. Ry. Co., 34 Utah 423,98 P. 311, for in such cases the facts are dissimilar, as may readily be perceived by comparing them with the facts in this case. *Page 388
We also are of the opinion that the court erred in paragraph 23 of the charge, also given at the request of the defendant. The charge, again without guidance, gives 7 the jury an unbounded field to determine whether the plaintiff was a trespasser, implies that notwithstanding material facts in the case concerning which there was no dispute, or in silence of them, or unrelated to any facts, no duty was owing by the train operatives until the plaintiff was actually discovered in a position of danger, singles out particulars to the exclusion of others of equal importance, strips the case of all consideration of questions of anticipation of the presence of persons on or about the track at the place in question, and of duty to observe an outlook for persons at and about such place, absolves the engineer and fireman, as well as other train operatives, from anticipating the presence of persons on the track at the vicinity in question, or from observing an outlook by the engineer and fireman for signals from the brakemen, renders the discovery of the brakemen of no avail unless at the same instant the peril was also known to the engineer and fireman, who testified they had no knowledge until after the child was run over, or unless they heard the warnings of the brakemen pounding and shouting, which, as they testified, they could not hear, because of the noise of the engine, or unless they saw the signals of the brakemen, which they did not see, because they did not look for any.
Paragraph 21 is erroneous because it eliminates from consideration whether the child could have been seen, had a proper and sufficient outlook been observed. That the child, standing in the middle of the track as the train approached, could have been seen by a proper and sufficient outlook, is, on the record, without substantial dispute, except that it could not have been seen by the engineer as the train was approaching and rounding the curve. That, however, but called for a more vigilant outlook by the fireman or other trainmen, whose view was not obstructed. *Page 389
Paragraph 13 likewise is erroneous. Whether as an abstract proposition such a charge is correct the authorities are in conflict. We need not now, and do not, determine 8 whether as an abstract proposition such a charge is or is not correct, or the circumstances when a charge concerning such a subject may properly be given. It is enough to say, as we do, that there is not anything in the record to render such a charge applicable. There is not anything to show that the fireman, at the time and place in question, was attending "to duties such as are necessary for the operation of the locomotive." The evidence, without dispute, shows the contrary. The fireman did not claim he then was attending to any such duties. His testimony was that, as the train approached the place in question, he was looking part of the time at a boy placing something on the track, and part of the time looking down the track, in the direction the train was moving. Thus the charge falls within the familiar rule that it is error to give instructions based on a state of facts which there is no evidence tending to prove, or which the undisputed evidence in the case shows did not exist, even though such instructions contain correct statements of law.
We are thus of the opinion that the defendant by its requests induced the court to give a wrong charge, to the prejudice of the plaintiff and to an advantage to the 9 defendant, to which it was not entitled, and whatever error, if any, there may be in the charge induced by plaintiff's requests, in no particular cured or contributed to the errors induced by the defendant's requests.
In this jurisdiction, arguments to the jury are made after, and not before, the charge of the court. As is seen, in paragraph 10 of the charge the court charged that 10, 11 "there is absolutely no evidence of any negligence on the part of the parents in this regard," in permitting the child to be on the track, and, though there were such negligence, it could not be imputed to the child, and *Page 390 thus directed the jury to disregard such defense. In his argument to the jury counsel for defendant, over objections and exceptions of counsel for the plaintiff, in connection with other similar statements, stated to the jury:
"It little lies in the mouth of the plaintiff here to make a charge that we should have looked for this particular child, in view of the fact that Mrs. Jensen [the mother of the child], who was sitting on the back porch with this child in her charge, and with nothing else to do, permitted it to walk on the railroad track."
Further stated counsel for defendant to the jury:
"Suppose one of your children was in your charge, and you permitted it to walk into a place like that and get injured, would you consider that you were doing the right thing in charging somebody else with negligence?"
Colloquies between counsel and the court followed, counsel for plaintiff contending that the argument to the jury in effect was an argument that the mother of the plaintiff was negligent in permitting the child to get on the track, and that under the charges such a contention was not permissible. Counsel for the defendant urged that he was not seeking to impute negligence of the mother to to the child, but —
"the thing we are saying is that we have a right to show the surrounding circumstances here; we have the right to contend somebody else was negligent, as we now contend, and it is for the jury to say in the last analysis what the fact is."
When asked who the "somebody else" was whom it was claimed was negligent, counsel but answered that he be permitted to make his argument. The first quoted statement the court ruled was not improper, that the jury "under the charge and the evidence could take care of the situation." As to the second quoted statement the jury were instructed not to consider it. We see no substantial difference as to the effect of the two statements, both being an argument or statement, if not directly, yet by inference, *Page 391 that the mother of the child was negligent in permitting the child to get on the track. And from the colloquies had it is quite clear that counsel for the defendant claimed the right, notwithstanding the charge, to argue such matter to the jury. From them we gather the contention of counsel for the defendant to be that, though the defendant was negligent, and though the mother also was negligent, yet if the negligence of both contributed to the injury, the negligence of the mother it was conceded would not defeat the child's right of recovery, nevertheless counsel claimed the right to argue that the defendant was not negligent in any of the particulars charged in the complaint, and that the sole and proximate cause of the injury was the negligence of the mother.
Assuming, without deciding, that such an argument, but for the charge, might on the record have been permissible, yet the court, by the charge, forestalled it, by charging that "there is absoutely no evidence of any negligence on the part of the parents in this regard" permitting the child to be on or about the track. For purposes of arguments to the jury, counsel, of course, are required to accept the charge and yield obedience to it, and are not permitted to argue against it. So, when counsel in effect argued that one of the parents was negligent, whether for the purpose of showing that such negligence was the sole and proximate cause or a concurring cause of the injury, he, because of the charge, was not within his rights, though the argument may have been entirely in good faith. We of course recognize a wide scope and great liberality in arguments of causes to a jury. But here the court clearly withheld from the jury all questions of negligence of the parents for any and all purposes. In such case, on timely objections, as here made, to permit arguments, either directly or indirectly, with respect to such questions, tends to mislead the jury. While the court eliminated some of the argument, he ought to have eliminated the whole of it, bearing on the subject, and erred in not doing so. The error may not alone be sufficient *Page 392 to require a reversal of the judgment, but the erroneous ruling had the tendency to do harm, and on the record we cannot say it did not to some extent influence the verdict to plaintiff's prejudice.
Lastly it is contended by the defendant that the plaintiff was not entitled to go to the jury, and that the defendant's motion for a directed verdict ought to have been granted, and thus all of the assigned errors of the plaintiff are harmless and nonprejudicial. There is a complete answer to this. There are no cross-assignments of error, and hence the defendant is in no position to invoke a review of the ruling on its motion.
There are other matters raised as to evidence, but as the judgment must be reversed, and the case remanded for a new trial, it is not probable such matters on a retrial will again arise. Thus no ruling is made as to them.
So, for the reasons hereinbefore stated, the judgment is reversed, and the cause remanded for a new trial. Costs to appellant.
THURMAN, C.J., and CHERRY, GIDEON, and HANSEN, JJ., concur.