Chicago & NW Ry. Co. v. Golay, 3195

• Decision Date: 02 July 1946
• Docket Number: 3196.,No. 3195,3195
• Citation: 155 F.2d 842
• Parties: CHICAGO & N. W. RY. CO. v. GOLAY (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

155 F.2d 842 (1946)

CHICAGO & N. W. RY. CO. v. GOLAY (two cases).

Nos. 3195, 3196.

Circuit Court of Appeals, Tenth Circuit.

May 21, 1946.

Rehearing Denied July 2, 1946.

R. R. Rose, of Casper, Wyo. (Nye F. Morehouse, of Chicago, Ill., Warren Newcome, of St. Paul, Minn., and James B. O'Shaughnessy, of Chicago, Ill., on the brief), for appellant.

W. J. Wehril, of Casper, Wyo. (W. H. Brown, Jr., and Madge Enterline, both of Casper, Wyo., and John J. McIntyre, of Cheyenne, Wyo., on the brief), for appellees.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

These are railroad crossing cases. Fred Golay and Ruth Golay, husband and wife, sustained personal injuries as the result of a collision between the automobile in which they were riding and a passenger train of the Chicago and Northwestern Railway Company. Separate actions for damages were instituted. The issues joined were negligence and contributory negligence. The actions were consolidated for trial before the court and a jury, resulting in separate verdicts and judgments for plaintiffs. Defendant appealed, and the cases are here on a single record and were submitted together. For convenience, plaintiffs in the trial court will be referred to as plaintiffs or by their individual names, and the defendant will be referred to as the company.

The accident occurred at the point where Elk Street in Casper, Wyoming, and the main track of the company intersect. Two other tracks cross Elk Street. They are denominated in the record as the industrial and the spur tracks, respectively. The main and the industrial tracks are parallel and extend east and west, while the spur track runs in a somewhat southeasterly and northwesterly direction. The industrial track is about 13 feet north of the main track, and the spur track is about 87 feet north of the industrial track or about 100 feet north of the main track. Elk Street extends generally north and south. Yellowstone Highway runs generally east and west and is located north of the tracks. Elk Street and Yellowstone Highway intersect at a point approximately 400 feet north of the main track. The country is generally flat and open. The area east of the street, and that west of the street and south of the tracks, was practically vacant and the view unobstructed. A building owned and used by The Keyes Tank Company, and numerous stacks or piles of heavy material and equipment consisting of I-Beams, angle irons, sheet metal, tank steel, steel girders, rings of tanks and various field equipment, were located west of the street and north of the main track of the company. The building was about 48 feet by 31 feet, with a leanto of 16 feet by 21 feet, and it was about 25 feet in height. The land on which the building and stacks of material were located belonged to the railway company and was leased to the tank company; and the building and stacks of material belonged to the tank company. A gondola car was standing on the industrial track west of the street, and the employees of the tank company were engaged in moving a tank from the rear of the building toward the street. The tank was about 6 feet in diameter, 12 feet in length, 6 feet in height, and was suspended from two gin-poles on an A-frame at the rear of a winch truck. A plank extended 8 or 10 feet in front of the truck and a man was sitting on the front end of the plank to counteract the weight of the tank at the rear of the truck. The plank was low enough that the man's feet touched the ground, and immediately preceding the accident he had almost reached the west edge of the oil mat of the street. There was an ordinary crossbuck railroad crossing sign west of the street at a point about 130 feet north of the main crossing, and a similar sign east of the street and south of the crossing; but there were no gates, flagman, flash signal, wig-way, or other mechanical warning at the crossing. Plaintiffs went from their home in Glenrock to Casper. They arrived in Casper shortly after ten o'clock in the forenoon. The windows of the car were closed, except the ventilation windows, and the radio in the car was on. They turned from Yellowstone Highway into Elk Street and drove south to the crossing of the main track. They were going about 20 or 25 miles per hour when they turned off the highway and into the street, but they slowed down and were going only about 10 or 15 miles per hour when they reached the crossing. Fred Golay was driving, Ruth Golay was beside him in the front seat, and their daughter was in the rear seat. The eastbound passenger train consisted of a gas-electric motor car and one coach. After the automobile and the train collided at the crossing, the car was carried along beside or with the train for a distance of 100 feet or more where it was stopped and plaintiffs were removed from it in their injured condition.

The court submitted to the jury the question whether the failure of the company to maintain gates, flagman, or flash signal at the crossing constituted negligence which was the proximate or one of the proximate causes of the accident. The submission of that question is challenged on the ground that there was no substantial evidence showing that the crossing was an unusually hazardous one which reasonably required the maintenance of any of such protective facilities. No statute of Wyoming has been called to our attention which requires a railroad company to provide a crossing of this kind with any special warning, and there is no general duty at common law to maintain any particular facilities of that kind at a crossing. But the rights of the general public and the rights of the railway company at street crossings are mutual and reciprocal; and, although common convenience gives to trains precedence over automobiles in the use of crossings, it is upon the condition that the company will give due warning of the approach of its trains in order that those in automobiles may stop safely and wait for the trains to pass. What constitutes reasonable and timely warning depends upon the circumstances and surroundings. For instance, the vigilance and care must be greater at crossings in a populous city or town where the travel is great than at ordinary crossings in the country. And, as a general rule, whether reasonable care and prudence require under all the circumstances that special warning facilities be maintained at a crossing in a city or town is a question of fact for the jury. Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chesapeake & Ohio Railway Co. v. Steele, 6 Cir., 84 F. 93; Evans v. Erie Railroad Co., 6 Cir., 213 F. 129; Northern Pacific Railway Co. v. Moe, 8 Cir., 13 F.2d 377; Cincinnati, New Orleans & Texas Pacific Railway Co. v. Champ, Ky., 104 S.W. 988; Toeneboehn v. St. Louis-San Francisco Railway Co., 317 Mo. 1096, 298 S.W. 795; Homan v. Missouri Pacific Railroad Co., 334 Mo. 61, 64 S.W.2d 617, certiorari denied 291 U.S. 683, 54 S.Ct. 561, 78 L.Ed. 1070.

Here, the traffic on Elk Street was quite heavy, especially during school. The children of about 200 families attended Elk Street School, and about half of them crossed the tracks in going to and coming from the school. Some of them walked and others traveled by school buses which crossed the tracks four times a day. Employees of two oil companies crossed the tracks in going to and from their work, and others used the street as a highway. The evidence presented sharp conflicts in respect to the distance of the building from the street, the extent and height of the stacks of material and equipment, the location of the gondola car, particularly its distance from the street, the location of the truck and tank in relation to the gondola car and the street, and the extent to which these structures and objects obstructed the view of one coming along the street from the north in seeing a train approaching from the west. We shall not stop to detail the testimony of the various witnesses who testified concerning the matter. It is enough to say that whether all of the circumstances in their composite effect were enough to require the company in the exercise of ordinary care and prudence to maintain special warning facilities at...