Los Angeles & S.L.R. Co. v. Lytle

• Decision Date: 12 December 1935
• Docket Number: 3097.
• Parties: LOS ANGELES & S. L. R. CO. ET AL. v. LYTLE.
• Court: Nevada Supreme Court

52 P.2d 464

56 Nev. 192

LOS ANGELES & S. L. R. CO. ET AL. v. LYTLE.

No. 3097.

Supreme Court of Nevada

December 12, 1935

Appeal from District Court, Clark County; E. P. Carville and Wm. E Orr, Judges.

On petition for rehearing.

Petition denied.

For prior opinion, see 47 P.2d 934.

COLEMAN J., dissenting.

Leo A McNamee and Frank McNamee, Jr., both of Las Vegas, Malcolm Davis and E. E. Bennett, both of Los Angeles, Cal., and Brown & Belford, of Reno, for appellants.

Chas Lee Horsey, of Las Vegas, for respondent.

DUCKER Chief Justice.

We have carefully considered the arguments and authorities presented in appellants' petition for a rehearing, but are not persuaded that it should be granted.

It must be conceded that there are cases at variance with our opinion, but we cannot concur in the assertion that they represent the weight of authority. In the case of St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 217, 56 A.L.R. 1110, the court concedes a condition implying negligence, which, in our opinion, the circumstances of this case disclose. The court said: "In other words, the employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them." (We have supplied the italics above.)

The same may be said of the case of Sisson v. Southern Ry. Co., 62 App.D.C. 356, 68 F. (2d) 403, 406, in which the court said: "Such an obligation [[obligation not to use its right of way in such a manner as will likely cause injury to pedestrians or automobiles using that highway with due care for their own safety] might arise out of an unusual condition brought about by the railroad company, as, for instance, damage to the crossing by a passing train, or, again, perhaps, if the physical conditions then existing with relation to the approach to the crossing were such that the exercise of due care on the part of the driver of an automobile would not of itself be sufficient to avoid the danger. In such a case the railroad company would be put on notice of its duty to provide other safeguards." The italics are ours.

The "peculiar environment" mentioned in the former, and the "physical conditions" stated in the latter, could comprehend the surrounding conditions at the crossing on the morning of the accident. In St. Louis-San Francisco R. Co. v. Guthrie, supra, so much relied on by appellants and quoted from extensively in the petition for rehearing, it was held that the mere leaving of cars on a crossing, without lights or other signals to disclose their presence, was a condition which, in itself, furnished no cause of action. It is earnestly contended that such is the case here, and that the said decision represents the great weight of authority on the question involved. Let us see how the facts differ from the facts which we think constituted the peculiar environment in this case, and fully justified the trial court in concluding that the leaving of the gondola car on the crossing was an act of negligence, and the proximate cause of the death of Mrs. Lytle.

It cannot be gainsaid that black surfaces, such as oiled highways and black gondola cars, are light absorbents. These were two of the factors in the instant case contributing to the deceptive environment. In the Alabama case it does not appear that the highway, or cars across it, were dark. It does not appear that the approach to the crossing was in a cut with brown hills, or any hills, on either side of the highway, extending down a grade close to the crossing, as in the case before us. For aught that appears, the entire train may have been in view of an approaching motorist. So far as the opinion discloses, the highway may have been infrequently used, and this known to the trainmen; whereas, in the instant case, the highway was a transcontinental one used extensively by auto travelers, both day and night, and this known to the conductor. In the former case the crossing may not have been at all dangerous, while the evidence in the record here shows that the crossing was a dangerous one.

In the case cited it appears that the presence of the cars on the crossing was necessary, while the evidence in the record before us discloses that leaving the cars on the crossing was unnecessary.

We do not regard Sisson v. Southern Ry. Co., supra, as an authority in point. The facts are widely dissimilar to the facts under our consideration. The presence of the cars on the crossing there for a period of three minutes was necessary.

Nothing appears in the case to indicate that the crossing was dangerous, except a curve in the highway near it, which, of itself, was a warning to motorists to keep their cars under proper control. As the plaintiff rounded the curve, the automobile was being driven between 30 and 35 miles an hour. Plaintiff's father, who owned the car, testified that traveling at 30 to 35 miles an hour the car could be stopped in 75 or 80 feet. This was less than the distance from the crossing to the curve. The court said: "There was a bend in the road, which continued to a point approximately 85 feet from the track, measured on the inside of the curve, and considerably farther measured on the outside. This bend of the road, as plaintiff testified, while he was driving on it, deflected the headlights of his automobile from the road into the field beyond so that he could only see objects on the side of the road and not in front of the car in the direction in which he was traveling. In such circumstances as these, the railroad company had a right to anticipate that an automobilist unfamiliar with the road would slacken his speed and keep his automobile under control while his vision was obscured. The very condition on which plaintiff relies to justify his failure to see the obstruction in time to stop of itself imposed on him the duty of reducing speed and proceeding with caution. Equally the railroad company had a right to anticipate that this would be done. Obviously, if it had been done, the accident would not have occurred."

In the above case there was nothing to indicate that a man exercising ordinary vigilance could not have seen the car, or train, for that matter, on rounding the curve. In other words, it does not appear that the environment, like in the instant case, was such...