Union Pacific Railroad Company v. Lumbert

• Decision Date: 12 November 1968
• Docket Number: No. 9735.,9735.
• Citation: 401 F.2d 699
• Parties: UNION PACIFIC RAILROAD COMPANY, a Utah corporation, Appellant, v. Jimmie Rex LUMBERT, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

401 F.2d 699 (1968)

UNION PACIFIC RAILROAD COMPANY, a Utah corporation, Appellant, v. Jimmie Rex LUMBERT, Appellee.

No. 9735.

United States Court of Appeals Tenth Circuit.

September 26, 1968.

Rehearing Denied November 12, 1968.

Edward T. Lazear, of Loomis, Lazear, Wilson & Pickett, Cheyenne, Wyo., for appellant.

Maxwell E. Osborn and John W. Pattno, of Pattno, Osborn, Lynch & Smith, Cheyenne, Wyo., for appellee.

Before MURRAH, Chief Judge, and WILBUR K. MILLER^* and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This case arises out of a railroad-crossing accident near Pine Bluffs, Wyoming. A jury awarded appellee-plaintiff damages in the amount of $102,573 and the railroad appeals.

A road and two railroad tracks intersected at an angle of 60 degrees. The only warning sign or device was the familiar crossbuck. A signal box, telegraph poles, and some bushes partially obstructed the view. The surface of the road was rough and contained chuckholes. The railroad was aware of the crossing conditions.

The plaintiff traveled the road regularly going to work. He testified that he stopped, looked in both directions, heard no whistle or other warning, began to cross the tracks, and remembers nothing further until he was in the hospital. Three other witnesses testified that they heard no whistle. The railroad knew of several other personal injury accidents which had occurred at the crossing in the previous five years.

The engineer of the train and a brakeman sitting in the fireman's seat testified that the train's whistle was blowing and the bell ringing; that the headlights of the engine were on; that they saw the plaintiff's car an unstated distance from the crossing;¹ that the plaintiff was looking forward and "fooling" with something on the dash of the car; that the train was traveling 55-60 miles an hour; and that an emergency stop of the train at that speed would have required one and a quarter miles. The train and the car arrived at the crossing at the same instant.

We believe that the evidence is sufficient to establish negligence of the railroad. The crossing was dangerous and known by the railroad to be dangerous. The questions of whether the railroad should have provided special warning devices at the crossing, of whether warning was given by the blowing of the whistle, and of whether the speed of the train was excessive are for determination by the jury.² Certainly we cannot say that the evidence completely negatives negligence of the railroad and is susceptible of no reasonable inference to sustain the position of the plaintiff.³

The railroad says that the plaintiff was contributorily negligent as a matter of law because he cannot say that he looked and failed to see what was clearly visible, or could have been seen by the exercise of ordinary care.⁴

The accident occurred in Wyoming and we must apply Wyoming law. The Supreme Court of that state has often said that contributory negligence can be resolved as a matter of law only in the clearest case.⁵ The question of negligence is "determinable by the trier of fact if there is any evidence which would show or tend to show the relative care or negligence which was exercised, or if intelligent minds may draw different conclusions as to the matters at issue."⁶

In Chicago, R. I. & P. R. R. Co. v. McFarlin, 10 Cir., 336 F.2d 1, cert. denied 379 U.S. 1001, 85 S.Ct. 721, 13 L.Ed.2d 702, we held that a motorist killed in a grade-crossing accident was contributorily negligent as a matter of law because under an unbroken line of New Mexico decisions a motorist approaching an open unguarded railroad crossing must "stop, look and listen for trains using the tracks, and the act of looking and listening must be performed in such manner as to make it reasonably effective."⁷ We are cited to no comparable Wyoming decisions. In Chicago & N. W. Ry. v. Golay, 10 Cir., 155 F.2d 842, 847, a Wyoming grade-crossing accident case, we held that the question of contributory negligence was for the jury when the evidence showed that the train whistle was not sounded and the driver's vision was partially obstructed. In the instant case there is evidence that the driver's view was partly blocked, that his attention could have been diverted by the roughness of the crossing, that the angle at which the track and road met made observation difficult, and that the train did not sound any warning. In our opinion the evidence disclosed a situation in which reasonable men might differ in their conclusions as to the proximate cause of the accident. Under the facts presented, Wyoming law requires the determination of the contributory negligence issue by the trier of the fact.⁸

Without objection the jury was instructed on the doctrine of last clear chance. The jury returned a general verdict. The railroad argues that the evidence is insufficient to sustain recovery on the theory of last clear chance.

Our attention is called to no Wyoming grade-crossing case considering the issue of last clear chance. In an automobile collision case, Wyoming has said that "the doctrine of last clear chance entails a clear and apparent opportunity to avoid the result."⁹ There is some doubt whether the record contains evidence to show that the engineer of the train had a "clear and apparent opportunity" to avoid the accident. In the circumstances we need not resolve the question.

The problem is whether on the record presented the railroad is in a position to seek a reversal on the ground of insufficiency of the evidence to sustain recovery under the doctrine of last clear chance. At the close of the plaintiff's case and at the close of all the evidence the railroad moved for a directed verdict on the sole ground that "there is no substantial evidence to support a judgment for the plaintiff." The motions were denied. The court twice instructed the jury on last clear chance and the railroad objected neither time.¹⁰ The jury returned a general verdict for the plaintiff.

In the absence of a pertinent objection to the charge or a request for a specific interrogatory a "general verdict is upheld where there is substantial evidence supporting any ground of recovery in favor of an appellee."¹¹ In the case at bar the evidence on the negligence issue is sufficient to sustain a verdict for the plaintiff. The argument of the railroad is that the jury might have been misled into deciding the case for the plaintiff on the ground of last clear chance. The only way it could have been misled is by an erroneous instruction. The railroad did not object to the last clear chance instruction although it had two opportunities to do so. In such a situation Rule 51, F.R.Civ.P., precludes consideration of the instruction.¹² To hold otherwise would be to permit a party to deliberately acquiesce in the tendering of a theory he knew to be erroneous so as to guarantee himself a second trial if the first resulted in an unfavorable jury verdict. On this appeal the railroad cannot take advantage of an objection which it never presented to the trial court.

Affirmed.

WILBUR K. MILLER, Senior Circuit Judge (dissenting):

In my view, the trial judge erred in refusing to direct a verdict for the railroad company and in refusing to grant its motion for judgment non obstante veredicto; hence I cannot concur in the foregoing opinion. While I have great sympathy for this unfortunate appellee, my reading of the record convinces me that he failed to show any negligence on the part of the railroad company which caused or contributed to his injury, and that he was contributorily negligent as a matter of law. My reasons for disagreeing with the majority opinion, both as to factual and legal issues, will become apparent during the course of this dissent.

In his second amended complaint, Lumbert charged the railroad company with negligence in the following language:

"4. The said collision aforesaid was proximately caused by the negligence of Defendant in that:

"a. The crossing referred to had inadequate warning signals.

"b. Defendant negligently failed to maintain said railroad crossing in a safe condition.

"c. Bushes and telephone poles obscured vision of Plaintiff where he was stopped on the west side of tracks at the crossing, and Defendant failed to give warning by sound or light of the approach of the railroad train.

"d. Defendant has had prior knowledge that said crossing was dangerous due to prior accidents.

"e. Defendant observed plaintiff in a position of peril and had the last clear chance to avoid said accident and negligently failed to do so in that defendant failed to slow said train and failed to give warning with a whistle."

The order on the pre-trial conference recites that "Mr. Osborn attorney for Lumbert * * * states that the accident occurred at a dangerous railroad crossing, that the defendant should have given more adequate warning signals, and that the defendant had the last clear chance to avoid the accident." According to the order, the attorney for the railroad company denied any negligence, pleaded contributory negligence, stated the warnings were adequate, and that "the last clear chance doctrine is not applicable."

The accident happened about 7:30 in the morning of November 2, 1966, — a cold, clear day — at a country crossing near Pine Bluffs, Wyoming, which the appellee had crossed at least twice on each working day for more than three months. He was thoroughly familiar with it. On this morning, he stopped a few feet short of the crossing in order to see whether repairs to his car he had made the night before were effective. After stopping "momentarily," or about two seconds, he said he looked both ways, saw and heard no train, and proceeded toward the crossing. He woke up in a hospital.

Lumbert said his view to his right was partially obscured by bushes and telephone poles, but admitted on cross-examination that when he stopped his car he had already passed the bushes. Moreover, a photograph of the...