Atchison, T. & SF Ry. Co. v. Spencer

• Decision Date: 01 August 1927
• Docket Number: No. 5038.,5038.
• Citation: 20 F.2d 714
• Parties: ATCHISON, T. & S. F. RY. CO. v. SPENCER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

20 F.2d 714 (1927)

ATCHISON, T. & S. F. RY. CO. v. SPENCER et al.

No. 5038.

Circuit Court of Appeals, Ninth Circuit.

August 1, 1927.

E. W. Camp, M. W. Reed, and Robert Brennan, all of Los Angeles, Cal., Chalmers, Stahl, Fennemore & Longan, of Phœnix, Ariz., and E. E. McInnis, of Oklahoma City, Okl., for plaintiff in error.

O. N. Marron and Francis E. Wood, both of Albuquerque, N. M., for defendants in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

This is a writ of error by the defendant railroad company to review a judgment of the United States District Court in Arizona in favor of plaintiff, who was seriously injured in a collision at a grade crossing in New Mexico.

The complaint alleged that the crossing where the accident occurred was dangerous, because view of approaching trains was cut off and obstructed by cuts, curves, and configuration of the ground; that the highway was negligently constructed, in that the tracks were on a grade 8 or 9 feet above the level at the point of crossing the tracks; that the condition of the crossing was unsafe because of topographical features, and that defendant should have restored the highway to a safe condition; that the defendant should have maintained automatic signals or warnings of approaching trains; that the train which collided with the truck in which plaintiff was riding was being run at an excessive rate of speed; and that there was no bell rung or whistle blown to warn plaintiff.

Defendant denied all allegations of negligence and that the approaching trains could not be discovered by persons who exercised reasonable care and prudence, and alleged that any damages suffered were caused solely by the negligent acts and omissions of plaintiff and his father. For convenience the parties will be designated as in the lower court.

On a clear afternoon in June, 1923, plaintiff, then a boy 17 years old, and his father were in the father's Ford automobile truck, which was struck by the locomotive of defendant's passenger train at a road crossing near Mountainair, N. M. The father was driving. The boy did not know how to drive the truck. At the crossing a single track ran approximately east and west. Plaintiff was familiar with the location of the track and the road. The truck approached from the south. Several times during the last few miles of their travel, preceding the accident, the engine of the truck gave trouble. "The car started missing." The father had to drive in low speed most of the time, and on the hills it was necessary for plaintiff to push the truck from behind. The road ran parallel with the track for a distance of half a mile before reaching the crossing. About 100 feet on the south side of the track the road turned, rose gradually about 10 feet, and crossed the railroad track at right angles. At the turn the truck stopped for about half a minute. The plaintiff got out, looked in both directions, and saw no train. The father then started the truck, and plaintiff, going to the rear, pushed the vehicle continually until within 50 feet of the track, when, without releasing his hold, he stepped quickly to the right side of the truck, placing his right hand on the back of the seat and his left hand on a brace on the body of the car. Keeping that position, he walked along with the truck, pushing it up the grade until it reached the top and the front wheels were moving over the first rail. He jumped upon the running board of the truck, which was moving to the down grade, got into the seat, and then, for the first time, looked eastward and saw a train approaching about 50 yards away. Collision was unavoidable. The father was fatally, and the son seriously, injured.

Plaintiff testified that, if he had stopped pushing, the truck would have backed to the bottom of the grade, and that from the position he was in when he was walking along the side of the car he could not turn his head and look behind him in the direction from which the train was coming, because to have done so he would have had to take his arm down and quit pushing; that his view of the train from the east would have been obstructed by a right of way fence, which with poles and boards "set up a distance of 4 feet," and a curve in the track "throws your head right against this fence on down the track." The fence referred to was a winged cattle guard extending out from the track about 6 feet. Plaintiff said further that, although at several times before starting up the grade he had seen his father stoop down and do something to the front of the car, he did not observe his father's position while he himself was walking along, pushing the truck as it approached the crossing. A witness for plaintiff testified that he saw the Spencers from the time they stopped at the corner of the right of way fence, when young Spencer began pushing the car up the grade; that the father then had hold of the steering wheel, and that when the truck was about half way between the corner and the railroad track he saw that "the old gentleman had this hand (indicating) on the wheel and was stooping down and fixing something on the car," and that he did not see the driver straighten up again.

Plaintiff also testified that, when they were about 500 yards from the crossing, he saw a freight train pass toward the east at a speed of about 20 miles an hour, and about 10 minutes thereafter the train that struck the truck came from the east. The distance between the crossing and the first station east, where a west-bound train could pass the freight train, was 1¾ miles. A passenger on the colliding train estimated the speed of the train at about 50 miles an hour; the engineer put the speed at between 30 and 35 miles. Approximately 850 feet east of the point of collision the train came through a cut. There was a whistling post a quarter of a mile east of the crossing, but there was no automatic signal at the crossing. To the west of the crossing the railroad ran through a cut, and from the corner post at the foot of the grade a train coming from the west could not be seen "more than a telegraph pole" (about 150 feet) before it reached the crossing.

Defendant company assigned as error the ruling of the court denying its motion, made at the close of the testimony, for a directed verdict, upon the ground that plaintiff was guilty of contributory negligence which barred recovery.

As pertinent to the undisputed facts, the well-established rule is that one who is about to drive a motorcar or truck over a railroad track at an unguarded crossing always has the obligation upon him vigilantly to use his faculties of sight and hearing. The driver must look to see whether a train is approaching. If, for any reason, his view of the track is obstructed, his duty is to listen. If, perchance, the engine of his automobile is making any noise, or if there is noise or confusion due to any cause which interferes with his hearing, it is his duty to take the precaution of stopping and listening. If the track is a single one, he should be vigilant to look in both directions before attempting to cross.

Plaintiff argues that the case is not wholly within those rules, and that the boy was in the relationship of a passenger or guest, as was Wright in Southern Pacific Co. v. Wright (C. C. A.) 248 F. 261, where it was held that if, in an automobile, there are two men in the relationship of passenger and driver, and the passenger believes the driver to be competent, and trusts to him to avoid the ordinary dangers, and there are no special circumstances to warn the passenger of danger, or to suggest the need of assistance, or even of advising the driver of the need of caution, the passenger may, as a rule, assume that the driver will not heedlessly or carelessly run into danger. The instant case, however, is very different. Here the plaintiff was not merely sitting in the car, leaving the sole management of the truck to his father. On the contrary, the father for some time before the accident had had but a limited control of the truck by reason of the inadequate motive power. The repeated assistance of the plaintiff had been necessary to surmount the grades, and was essential in ascending the grade to the track. Indeed, the main controlling element of power was the physical exertion of the plaintiff. Without his assistance, steadily sustained, the car could not ascend the grade; with it, it would and did. The plaintiff knew this.

Moreover, at times before going up the last grade he had seen his father stoop over in an attempt to repair the cause of the defective motor. Plaintiff therefore knew that his father was giving close attention to the faulty mechanism. This circumstance of itself should have made him vigilant with his own senses. So far as the plaintiff was concerned, there was no sudden or unexpected loss of power or other circumstance to distract his attention, which relieved him of the duty to exercise vigilance. Nevertheless, with the truck in a disabled condition, and with the control of its forward movement in his power, plaintiff pushed the car onto the track without looking eastward until after the front wheels were over the first rail and he had resumed his seat beside his father.

When we apply the fundamental test calling for the exercise of ordinary care and prudence in the situation plaintiff was in, we must reject his explanation, by way of excuse, that he was giving his whole attention to the car and to the possibility of a train coming from the west, and that the position of his body while pushing the car made it difficult to keep the car moving and at the same time to look eastward. Morehead v. A., T. & S. F., 27 N. M. 349, 201 P. 1048; Sandoval v. A., T. & S. F., 30 N. M. 343, 233 P. 840; Dernberger v. Baltimore & Ohio R. Co. (C. C. A.) 243 F. 21; Southern Ry. Co. v. Priester (C. C. A.) 289 F. 945; Kansas v. Chicago, etc., Co., 180 Wis. 49, 192 N. W. 383.

The case was therefore one where...