Allan v. Oregon Short Line Railroad Co.

• Citation: 60 Idaho 267,90 P.2d 707
• Decision Date: 30 September 1938
• Docket Number: 6552
• Parties: JULIUS ALLAN and ADA ALLAN, Appellants, v. OREGON SHORT LINE RAILROAD COMPANY and A. L. ROSE, Respondents
• Court: United States State Supreme Court of Idaho

90 P.2d 707

60 Idaho 267

JULIUS ALLAN and ADA ALLAN, Appellants, v. OREGON SHORT LINE RAILROAD COMPANY and A. L. ROSE, Respondents

No. 6552

Supreme Court of Idaho

September 30, 1938

RAILROADS-CROSSING ACCIDENT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY-LAST CLEAR CHANCE DOCTRINE-RING BELL AND BLOW WHISTLE-STATUTORY CONSTRUCTION-MOTION FOR NONSUIT-MOTION FOR DIRECTED VERDICT.

1. Generally, the question of negligence, or contributory negligence, is one for the jury.

2. In actions for damages for injury to the person where negligence has been established and contributory negligence is relied on as a matter of defense, it is not necessary for the plaintiff to either plead or prove the negative of contributory negligence. (I. C. A., sec. 5-816.)

3. The question of contributory negligence is for the jury and never one of law unless the facts alleged in the complaint, or proven, are reasonably susceptible of no other interpretation than that the conduct of the injured party caused or contributed to his injury and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under like circumstances.

4. A motion for nonsuit, or directed verdict, admits the truth of all evidence introduced on behalf of plaintiff, and he is entitled to have drawn therefrom all reasonable inferences favorable to him.

5. A nonsuit or directed verdict is proper only where there is an entire absence of testimony tending to establish the case and, where the question depends on a state of facts from which different minds may honestly draw different conclusions on the issue, the question must be submitted to the jury.

6. Under a statute requiring that a locomotive whistle or bell must be sounded from a distance of at least 80 rods from a crossing and kept sounding at intervals until the street road, or highway is crossed, failure to conform to the statute constitutes negligence. (I. C. A., sec. 60-412.)

7. Deceased, who had stopped his truck a few feet from the tracks and then started to cross, at a place where the view was not obscured, when the train was apparently only 200 or 300 feet from the crossing, was guilty of contributory negligence as a matter of law, where the evidence conclusively showed that when deceased started to cross the tracks the fireman immediately gave the alarm to the engineer, who did everything in his power to avoid accident.

8. Testimony of fireman, on cross-examination in crossing accident case, tending to show, in substance, that he had seen deceased start across the tracks when train was approximately 2,000 feet from crossing, was not sufficient to take case to jury on question of whether fireman could have warned engineer in time to have prevented accident, where such testimony was contradictory of other testimony erroneous, and due to confusion of witness.

9. In weighing the testimony of a witness, it must be considered as a whole and a fragment thereof inconsistent with his other testimony and manifestly given because of misunderstanding or confusion will not support an inference which will take the case to the jury.

10. In determining whether a nonsuit should be granted, evidence must be considered as a whole, and action of trial court is not to be based on isolated portions of it.

11. Where a provision has been adopted by the legislature from the statutes of another state, which have been construed by the courts of that state, it will be assumed that the construction which had been placed on it was also adopted.

12. The statute requiring a locomotive whistle or bell to be sounded from a distance of at least 80 rods from a crossing, and kept sounding at intervals until the street, road, or highway is crossed, was enacted for purpose of requiring a train to warn persons of its approach at crossings. (I. C. A., sec 60-412.)

13. The statute requiring a locomotive whistle or bell to be sounded from a distance of at least 80 rods from a crossing, and kept sounding at intervals until the street, road or highway is crossed, does not abrogate doctrine of contributory negligence or give a right of action where negligence of plaintiff contributed to and was the proximate cause of injury. (I. C. A., sec. 60-412.)

14. Failure to comply with statute requiring a locomotive whistle or bell to be sounded from a distance of at least 80 rods from a crossing and kept sounding at intervals until the street, road, or highway is crossed, is "negligence per se." (I. C. A., sec. 60-412.)

15. Under statute requiring a locomotive whistle or bell to be sounded from a distance of at least 80 rods from a crossing and kept sounding at intervals until highway is crossed plaintiff makes his case by showing the negligence or noncompliance with the statute, and injuries; but statute does not deny right to defendant to show that plaintiff is not entitled to recover because of contributory negligence which was the proximate cause, or one of the proximate causes of the injury. (I. C. A., sec. 60-412.)

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. C. J. Taylor, Judge.

Action for damages for death resulting from injuries received in railroad crossing accident. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

E. H. Hillman and Anderson, Bowen & Anderson, for Appellants.

The rule, according to a long line of decisions of this honorable court, is that in a motion for nonsuit or directed verdict the evidence must be construed in the light most favorable to the plaintiff. It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may be properly ordered or a directed verdict granted. When the question depends upon a state of facts from which different minds may honestly draw different conclusions on that issue, the question must be submitted to the jury for determination. Where facts are disputed, or inferences therefrom are reasonably disputable, the question is for the jury. (Claris v. Oregon Short Line R. Co., 54 Idaho 568, 33 P.2d 348; Jester v. Philadelphia & P. W. R. Co., 267 Pa. 10, 109 A. 774; 64 C. J. 407; Brown v. Jaeger, 46 Idaho 680, 681, 271 P. 464; Bean v. Katsilometes, 50 Idaho 485, 298 P. 363.)

If an inference of negligence can with reasonable probability be drawn, it is within the power of the jury to do so. The judge should never direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained. (26 R. C. L. sec. 75, p. 1068, and cases there cited; 64 C. J. sec. 407; 64 C. J. 417, p. 422; Claris v. O. S. L. R. Co., supra.)

The statutes of Idaho declare it an absolute duty resting upon the railroad company when its engines approach and pass over a street, road, or highway crossing to ring a bell or sound a whistle in the manner prescribed by the statutory enactments, and its failure to do so constitutes negligence per se, common negligence in law. (Branson v. Northern Pacific R. Co., 55 Idaho 220, 41 P.2d 629; sec. 60-412, I. C. A., 1932, and sec. 17-2717, I. C. A., 1932; Wheeler v. Oregon Ry. etc. Co., 16 Idaho 375, 102 P. 347; Graves v. Northern Pacific R. Co., 30 Idaho 542, 166 P. 571.)

Under the doctrine of last clear chance, it was the duty of the engineer and fireman after seeing Allan's danger, or being so situated that he should have seen it, to do all in their or his power to avoid injuring or killing him. Whether they or he should have applied the brakes sooner than he did, in order to reduce the speed of the train and give Allan more time than was given him to escape, and whether he should have sounded the proper whistle and bell signals in order to warn him were questions for the jury. (Branson v. Northern P. Ry. Co., supra; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Bryant v. Hill, 45 Idaho 662, 264 P. 869.)

H. B. Thompson and L. H. Anderson, for Respondents.

It is the duty of a traveler approaching a railroad crossing to look and listen, and, if necessary in order to know whether he may cross the track in safety, to stop. (Burrow v. Idaho & W. N. R., 24 Idaho 652, 135 P. 838; Testo v. Oregon, Washington R. & N. Co., 34 Idaho 765, 203 P. 1065; Smith v. Oregon Short Line R. R. Co., 47 Idaho 604, 277 P. 570; Young v. Pacific Elec. Ry. Co., 208 Cal. 568, 283 P. 61, 65.)

Where one approaching a railroad crossing is familiar with the situation, he must use greater care as the danger is greater; he must, as he approaches, look from a place where he can see, and listen from a place where he can hear--this is an imperative duty so long as there is any need of its exercise. (Rowe v. Northern P. R. R. Co., 52 Idaho 649, 17 P.2d 352; Cathcart v. Oregon-Washington R. & N. Co., 86 Ore. 250, 168 P. 308, 310; Nucci v. Colorado & S. R. Co., 63 Colo. 582, 169 P. 273.)

The operatives of a railroad train are under no legal obligation to stop or slow up for a crossing upon observing an automobile approaching at a slow rate of speed or standing within view of the approaching engine. (Burrow v. Idaho, W. N. R., supra; McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148; Restatement of the Law of Torts, sec. 480; Wilkinson v. Oregon Short Line R. R. Co., 35 Utah 110, 99 P. 466.)

Under the facts assumed in the preceding point, the doctrine of last clear chance does not apply, there being no room for the application of that rule until the traveler drives upon the track or so close thereto that the passing train would come in contact with the vehicle, and his presence is observed (actual notice) in time to avoid collision with...