Lopez v. Denver & Rio Grande Western Railroad Co.

• Citation: 277 F.2d 830
• Decision Date: 21 March 1960
• Docket Number: No. 6223.,6223.
• Parties: Tony LOPEZ, Patsy Lopez, an incompetent, by her Guardian ad Litem, Tony Lopez; Lorencita L. Archuleta; and Cresencio Archuleta, a minor, by Lorencita L. Archuleta, his General Guardian, Appellants, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

277 F.2d 830 (1960)

Tony LOPEZ, Patsy Lopez, an incompetent, by her Guardian ad Litem, Tony Lopez; Lorencita L. Archuleta; and Cresencio Archuleta, a minor, by Lorencita L. Archuleta, his General Guardian, Appellants, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Appellee.

No. 6223.

United States Court of Appeals Tenth Circuit.

March 21, 1960.

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Cullen Y. Christenson (of Christenson, Novak, Paulson & Taylor), Provo, Utah, for appellants.

Grant H. Bagley (of Van Cott, Bagley, Cornwall & McCarthy), Salt Lake City, Utah, for appellee.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and WALLACE, District Judge.

MURRAH, Chief Judge.

This is an appeal from a summary judgment for the defendant railroad in a Utah crossing accident case. Plaintiff-appellants are the driver of the automobile, two of his three passengers, and the child of the third passenger who was killed in the collision. Appellee's motion to amend its petition for removal to supply sufficient allegations of citizenship and principal place of business existing at the time of commencement of this action is hereby granted, and diversity jurisdiction is therefore present. See 28 U.S.C. § 1653; Note, 13 Okla.L.Rev. 73 and authorities cited therein.

We know of course that a summary judgment is appropriate only when no genuine issue of fact survives the pre-trial proceedings. See Champlin v. Oklahoma Furniture Manufacturing Co., 10 Cir., 269 F.2d 918; Alaniz v. United States, 10 Cir., 257 F.2d 108; Hunt v. Pick, 10 Cir., 240 F.2d 782. All bona fide factual disputes are to be decided by the triers of fact. And the power to decide facts carries with it the power to draw all reasonable inferences from established facts. This is especially true in matters involving negligence and proximate cause, which are necessarily gauged by the behavior of the reasonable man. See Wilkerson v. McCarthy, 336 U.S. 53, 61-64, 69 S.Ct. 413, 93 L.Ed. 497; Nelson v. Brames, 10 Cir., 253 F.2d 381; Globe Cereal Mills v. Scrivener, 10 Cir., 240 F.2d 330; Chicago, Rock Island & Pacific Railroad Company v. Hugh Breeding, Inc., 10 Cir., 232 F.2d 584; Independent-Eastern Torpedo Co. v. Ackerman, 10 Cir., 214 F.2d 775. Questions like these become matters of law to be decided summarily or after trial only when reasonable minds could not differ as to the facts and the inferences to be drawn therefrom. Thus, a summary judgment, like a directed verdict, is unwarranted unless the court is convinced from the proof that the jury could arrive at but one conclusion, and if it did otherwise the court would be compelled to render judgment n. o. v. See Transcontinental Bus System, Inc. v. Taylor, 10 Cir., 265 F.2d 913; Commercial Standard Insurance Company v. Feaster, 10 Cir., 259 F.2d 210; Kippen v. Jewkes, 10 Cir., 258 F.2d 869.

The appellants here do not contend that all of the pertinent facts were not in. They simply say that they presented a jury question, i. e., that the established facts were susceptible of an inference of actionable negligence on the part of the railroad. If therefore the established facts do not give rise to a permissible inference of actionable negligence, the summary judgment was appropriate and ought to be affirmed.

There is nothing new or novel about a railroad crossing accident case, but like people's faces, no two are indistinguishably alike. And so we come to the facts of this case, as they appear most favorably to appellants. About midnight on a Utah state highway in open country, appellant Lopez drove his automobile into the middle part of a 36 car freight train. The crossing was roughly 90 degrees, and the highway from whence the automobile came was straight for more than 1,400 feet with no obstructions to impair a full view of the tracks. The usual crossbuck sign was by the crossing, and 447 feet west of the crossing was the usual yellow highway warning sign. Appellants claim that they did not see the yellow highway sign because they were passing another vehicle at that place in the road, and that they did not see the train until they were about 50 feet from it. The speed of the automobile at the time of the collision is estimated to be 50 to 60 miles per hour, and that of the train approximately 20 miles per hour. The driver says that his lights were still on low beam from passing the other vehicle.

Because the railroad necessarily has the right of way at such crossing it has the reciprocal duty to give due warning of the existence of the crossing, the approach of its trains and, finally, the presence of its trains upon the crossing. That which constitutes reasonable warning in each instance depends upon the conditions and circumstances at the particular crossing. Interstate Motor Lines v. Great Western Ry. Co., 10 Cir., 161 F.2d 968, 972; also quoted in Union Pacific Railroad Company v. Snyder, 10 Cir., 220 F.2d 388, 391. See also Pippy v. Oregon Short Line R. Co., 1932, 79 Utah 439, 11 P.2d 305. But here the collision was with the middle of a 36 car freight,...