Parramore v. Denver & RGWR Co.

• Decision Date: 30 April 1925
• Docket Number: No. 6730.,6730.
• Citation: 5 F.2d 912
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: PARRAMORE et al. v. DENVER & R. G. W. R. CO.

5 F.2d 912 (1925)

PARRAMORE et al. v. DENVER & R. G. W. R. CO.

No. 6730.

Circuit Court of Appeals, Eighth Circuit.

April 30, 1925.

Mahlon E. Wilson, of Salt Lake City, Utah, for plaintiffs in error.

W. Q. Van Cott, of Salt Lake City, Utah (Van Cott, Riter & Farnsworth, of Salt Lake City, Utah, on the brief), for defendant in error.

Before SANBORN and LEWIS, Circuit Judges, and POLLOCK, District Judge.

SANBORN, Circuit Judge.

Joseph Parramore, while riding in the Ford automobile of the owner and driver, John Reynolds, on the latter's invitation, was carried onto the track of the railroad of the Denver & Rio Grande Western Railroad Company in front of a moving engine of that company and instantly killed. His widow, his minor heirs by their guardian, and the Cudahy Packing Company of Nebraska, as assignee of the dependant heirs, brought an action against the railroad company under section 6505 of the Compiled Laws of Utah of 1917, for damages resulting to them from his death, which they alleged was caused by the negligence of the railroad company. That statute authorized the maintenance of such an action. The defendant denied the charge of its negligence and pleaded that the deceased was guilty of negligence, which directly contributed to cause the collision and his death. The case was tried by a jury, the plaintiffs and the defendant produced witnesses and introduced their testimony to sustain their respective claims, and at the close of the trial, on a motion by counsel for the defendant, the court instructed the jury to return a verdict in its favor, on the ground that the evidence was conclusive that Mr. Parramore was guilty of negligence which directly contributed to cause his death. The plaintiffs assigned this ruling as error. The only material question in this case, therefore, is whether or not the proof of contributory negligence of the deceased was such that a verdict for the plaintiffs could not have been lawfully sustained by the court, if the jury had been permitted to render it.

We omit discussion of the alleged negligence of the defendant, although the weight of the evidence on that subject seems to be heavily, if not conclusively, in favor of the railroad company: (1) Because in an action for damages for negligence causing death the question of contributory negligence is not whether the negligence of the decedent or that of the defendant was the more proximate cause of the death, but it is whether or not the negligence of the decedent directly contributed to cause it (Marshall v. Hines C. C. A. 271 F. 165, 169, and cases there cited), and (2) because the failure of the railroad company or its employees to sound whistles, ring bells, or to discharge other duties when operating the engines and trains of the company is no excuse for the failure of travelers on the highways to discharge their respective duties. They are still bound by the law effectively to look and listen and with reasonable care to watch and act to prevent collisions and to protect themselves and the operators of and passengers on the railroads from injury and death (Chicago, M. & St. P. Ry. Co. v. Bennett, 181 F. 799, 803, 104 C. C. A. 309; Chicago Great Western R. Co. v. Biwer C. C. A. 266 F. 965, 969; Bradley v. Missouri Pac. R. Co. C. C. A. 288 F. 484, 488, 493; Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 702, 24 L. Ed. 542; Schofield v. Chicago, etc., Ry. Co., 114 U. S. 615, 618, 5 S. Ct. 1125, 29 L. Ed. 224.

The collision which was fatal to Mr. Parramore occurred about 7:15 in the morning of a clear August day in 1921, at the crossing at grade of the railroad of the defendant by the highway on which the deceased was riding. The railroad extended north and south, and the highway east and west. East of the defendant's railroad and nearly parallel with it at the crossing were the railroad tracks of the Oregon Short Line Railroad Company. Mr. Reynolds, who was driving the automobile, approached the crossing on the highway from the east, and intended to drive westerly across all the railroad tracks to the plant of the Cudahy Packing Company, on the west side of the railroad tracks of the defendant at this crossing. The distance from the west rail of the Oregon Short Line tracks to the east rail of the defendant's tracks was 119 feet. Before Mr. Reynolds arrived at any of the tracks, he had invited Mr. Parramore to ride with him; the latter had accepted that invitation, and had taken the front seat on the north side of the car, by the side of Mr. Reynolds; and Mr. Thomas had asked Mr. Reynolds for a ride, the latter had granted his request, and Mr. Thomas had seated himself in the back seat of the automobile. There was an engine headed south on one of the tracks of the defendant, about two blocks north of the crossing, as the occupants of the automobile drove west across the tracks of the Oregon Short Line Railroad. This engine was plainly visible to the occupants of the car all the time after they reached a point on the highway 186 feet east of the east rail of the defendant's railroad. When they were about 125 feet east of that rail, Reynolds looked north and saw the engine, but testified that he was not certain whether the engine was moving or stationary. He testified that he then looked south, and that he did not look north again until Thomas, when they were 30 or 40 feet from the defendant's track, at a time too late for Reynolds to avoid the collision, shouted, "Here comes a train."

As the automobile came over the Oregon Short Line tracks, and over the space between those tracks and the east rail of the defendant's, it was going at a speed of from 15 to 25 miles an hour, and it could have been stopped in from 14 feet to 27 feet. It was driven so far onto the track in front of the engine that when the collision occurred the engine threw the automobile and all its occupants off on the west side of the track. The speed of the engine from the point where Reynolds first saw it to the point of the collision was from 15 to 20 miles an hour. The curtains to the automobile were up, and there was no obstacle to interrupt the vision of Mr. Parramore from the point 186 feet east of the east rail of the defendant's railroad to that rail. Mr. Parramore sat on the front seat of the automobile, on the north side of it, on the side from which the engine which struck it came, and Mr. Thomas, who was in the automobile with him, testified that he did not see Mr. Parramore do anything. Mr. Reynolds, who sat by his side on the front seat, testified that Mr. Parramore did not say a word or try to get out of the car before the engine struck it. The railroad track and the engine were constant warnings to him of the danger of crossing that track.

The driver of the car was bound by his legal duty carefully to operate and control the speed...