Andersen v. Bingham & Garfield Ry. Co.

• Decision Date: 01 February 1950
• Docket Number: No. 7356,7356
• Citation: 117 Utah 197,214 P.2d 607
• Court: Utah Supreme Court
• Parties: ANDERSEN, v. BINGHAM & GARFIELD RY. CO.

Page 607

214 P.2d 607

117 Utah 197

ANDERSEN, v. BINGHAM & GARFIELD RY. CO.

No. 7356.

Supreme Court of Utah.

Feb. 1, 1950.

Rawlings, Wallace, Black, & Roberts, Salt Lake City, for appellant.

Dickson, Ellis, Parsons & McCrea, Salt Lake City, A. D. Moffat, Salt Lake City, Calvin A. Behle, Salt Lake City, for respondent.

WOLFE, Justice.

This action was commenced by the appellant, Lloyd C. Andersen, plaintiff below, to recover damages allegedly incurred when the automobile he was driving collided with a train owned and operated by the respondent, Bingham & Garfield Railway Company, defendant below. The parties will hereinafter be referred to as they appeared in the lower court.

The accident occurred at approximately 9:00 p. m. on May 23, 1947, at a point where the defendant's railroad track crosses U. S. Highway 50, a short distance west of Garfield, Salt Lake County, Utah. There the highway extends in a general east-west direction. The railroad track parallels the highway on the south for approximately one-fourth of a mile east of the crossing, but at the crossing the track bends and crosses the highway in a northwest-southeast direction. At the time of the accident Andersen was driving east on the highway enroute from Tooele to Salt Lake City, Utah. When he left Tooele it was dark and he turned on his automobile headlights. At the trial, Andersen was unable to recollect anything concerning the accident; the last event which he could recall prior to the accident was that he stopped at the junction of the Tooele highway and U. S. Highway 50, and then proceeded east along Highway 50.

The defendant's train, consisting of fifteen gondola type cars being pushed by a Diesel engine was approaching the crossing traveling in a westerly direction and at a speed between seven and ten miles per hour. There were no lights on the leading cars except lanterns carried by three members of the train crew who were riding on the front end of the leading car. The night was dark and the engine's headlight cast a strong beam of light over the tops of the gondola cars. There was evidence that a ridge of mountains lying south of the track has the effect of shrouding equipment moving along the track at night and of removing any silhouette against the sky which might reveal the presence of a train on the track. The plaintiff contends that doubtless the headlight on the engine created the illusion that the engine was at the head of the train and thus the plaintiff failed to observe the cars ahead of the engine. The plaintiff's view of the crossing was unobstructed. The crossing warnings on the highway were in every respect standard, consisting of a reflectorized cross-buck warning sign and a standard warning sign approximately 417 feet to the west of the crossing.

The estimates of the speed of the plaintiff's automobile as it approached the crossing made by witnesses ranged from 31 to 45 m. p. h. Two of the trainmen on the leading car waved their lanterns back and forth endeavoring to attract Andersen's attention. The bell and the whistle on the engine were sounded. James Paddock, the engine foreman, one of the three men riding on the front of the leading car, climbed to the top of the car in order to signal the engineer to stop the train if it became necessary. As the plaintiff's automobile approached the crossing it appeared to the men on the car as though the appellant hesitated and then tried to drive around the end of the leading car. Automobile tire marks twenty-eight inches long indicating a forceful application of automobile brakes were found on the pavement seventy-two feet west of the point of impact. When the front end of the leading car was at a distance estimated by the three trainmen to be from 10 feet to three railroad car lengths (about 105 feet) from the crossing, Paddock gave the engineer a 'washout' signal, i. e., a signal to immediately apply all the braking power at hand. The engineer, Vee Colby, however, testified that 'momentarily' before Paddock gave the 'washout' signal, he (Colby) had made an emergency application of the brakes. The application of the brakes 'slowed down' the train, but a collision was not avoided. The plaintiff's automobile was struck on its side by the front end of the leading car, demolished by the impact, and shoved down the track 217 feet before the train stopped. The leading trucks of the leading railroad car were derailed by the impact and bumped along the ties until the train stopped. The plaintiff was seriously injured and was hospitalized for nearly six months.

The plaintiff's complaint alleged that the defendant was negligent in several particulars, but prior to the submission of the case to the jury, the plaintiff abandoned all its allegations of negligence except the allegation that the train was operated with defective brakes in violation of the Safety Appliance Act, 45 U.S.C.A. Sec. 1 et seq. Under one of the instructions given to the jury, they were entitled to find that the defendant had a last clear chance to avoid injury to the plaintiff. A verdict of 'no cause of action' was returned. The plaintiff prosecutes this appeal contending that the instructions to the jury were erroneous in several particulars and thereby clouded and confused the issue of whether the defendant had a last clear chance. Under the view we take of the case, however, it is unnecessary to consider the plaintiff's contention.

Instruction No. 12 in which the last clear chance issue was submitted to the jury reads:

'Even though an injured party, through his own negligence, placed himself in a position of peril, he may, nevertheless, recover if the one who injures him discovers, or by the exercise of ordinary care, should have discovered him and have avoided the injury.

'Although you may find from the evidence that plaintiff was negligent as he approached said crossing, if you find from a preponderance of the evidence that the air-brakes were defective, and that the defendant, by using ordinary care under the circumstances, could have discovered plaintiff's peril and avoided the collision if the air-brakes had not been defective, then, under those circumstances, negligence on the part of the plaintiff would not bar his right to recover in this case.'

Thus the jury was instructed to return a verdict for plaintiff if they found that defective brakes on the train prevented the defendant from exercising what would have otherwise been an opportunity to avoid harming the plaintiff who had through his own negligence exposed himself to peril. The plaintiff does not contend that the engineer was negligent in not using greater care to avoid the peril with the means he had at hand; the plaintiff's sole justification for submitting the issue of last clear chance to the jury is that there was evidence that the engineer had adequate and sufficient time within which to have avoided the accident had the brakes performed properly and efficiently.

There is a diversity of judicial opinion in this country as to the question presented by the fact situation of this case. Stated succinctly the question is this: Does a precedent act of negligence on the part of a defendant, whether it be of omission or commission, whereby the defendant has rendered himself powerless to avert an accident after discovering that it is impending, make the defendant liable to a plaintiff who has through his own negligence exposed himself to peril? It is immaterial for our purposes here whether the plaintiff is inattentive and thus negligent or whether the plaintiff is unable to extricate himself from a position of peril into which his negligence projected him. Graham v. Johnson, 109 Utah 346, 166 P.2d 230, on rehearing 109 Utah 365, 172 P.2d 668.

The American Law Institute in its Restatement of Torts, Secs. 479, 480, adopts the view which is declared by Francis H. Bohlen in an article appearing in his Studies in the Law of Torts, p. 536, 539 and also appearing in 66 University of Pennsylvania Law Review, 73, as the overwhelming weight of authority in the United States. Section 480 of the Restatement which is applicable to the fact situation of the instant case states:

'A plaintiff, who, by the exercise of reasonable vigilance could have observed the danger created by the defendant's negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant

'(a) knew of the plaintiff's situation, and

'(b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm, and

'(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.' (Italics added.)

The comment on clause (c) (found under Sec. 479) is as follows:

'(f) Antecedent lack of preparation. * * * If the defendant, after discovering the plaintiff's peril, does all that can reasonably be expected of him, the fact that his efforts are defeated by antecedent lack of preparation or a previous course of negligent conduct is not sufficient to make him liable. All that is required of him is that he use carefully his then available ability. Thus, if A, a railroad engineer, discovers a wayfarer helpless on a highway crossing which he has entered without taking precautions to see whether a train was approaching, and A thereafter does all which is then in his power to stop the train before it hits the traveler, the traveler may not recover against the railroad although his position was seen in ample time to stop the train had the brakes not been negligently permitted to be in bad condition. So too, if a railroad train is exceeding the statutory speed limit in approaching a level crossing but the engineer does not see the plaintiff's helpless peril on the crossing in time to stop the train, the fact that the train could have stopped in the distance between the two points had it been going at the lawful...