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LOPEZ v. UNION PACIFIC R. CO.2/25/1997
t ahead at places not frequented by people, but that they are required to keep a reasonable lookout ahead for persons who might be upon the tracks at a time when, or a place where, the company knows persons frequently and in considerable numbers use the tracks for either business or pleasure. This court is committed to the last-mentioned doctrine. Hyde v. Union Pacific Ry., 7 Utah 356, 26 P. 979; Young v. Clark, 16 Utah 42, 50 P. 832; Corbett v. Oregon S.L.R. Co., 25 Utah 449, 71 P. 1065; Teakle v. San Pedro, L.A. & S.L.R. Co., 32 Utah 276, 90 P. 402, 10 L.R.A. (N.S.) 486; Smalley v. Rio Grande Western R. Co., 34 Utah 423, 98 P. 311; Palmer v. Oregon S.L.R. Co., 34 Utah 466, 98 P. 689, 696, 16 Ann. Cas. 229; Jensen v. Utah Ry. Co., 72 Utah 366, 270 P. 349.
Id. 2 P.2d at 104 (emphasis added).
Plaintiff produced evidence that workers habitually crossed over the cuts of rail cars to reach the parking lots. Union Pacific on two separate occasions preceding the accident noted that employees of ANI and Evans were crossing between rail cars while cars were being switched and indicated that this practice must be stopped. Plaintiff was injured by the intentional act of the Railroad in moving its cars from a stationary position. Whether "a reasonable person would believe that serious injury would probably result from the act of the owner or operator of the railroad," ยง 56-1-18.5(2)(b)(i), is a question to be resolved by the trier of the facts. We conclude that plaintiff has presented a prima facie case of liability on the part of Union Pacific and that the trial court erred in granting summary judgment.
The summary judgment in favor of Union Pacific is reversed, and the case is remanded to the trial court for further proceedings.
ZIMMERMAN, C.J., STEWART, Associate Chief Justice, and DURHAM, J., concur in Justice HOWE'S opinion.
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