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

• Decision Date: 05 August 1935
• Docket Number: 3097.
• Citation: 47 P.2d 934,56 Nev. 192
• Parties: LOS ANGELES & SALT LAKE R. CO. ET AL. v. LYTLE. [a1]
• Court: Nevada Supreme Court

47 P.2d 934

56 Nev. 192

LOS ANGELES & SALT LAKE R. CO. ET AL. v. LYTLE. ^[a1]

No. 3097.

Supreme Court of Nevada

August 5, 1935

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

Action by John M. Lytle, as administrator of the estate of Vilate Lytle, deceased, against the Los Angeles & Salt Lake Railroad Company and others. From a judgment for plaintiff, and a denial of their motion for a new trial, defendants appeal.

Affirmed.

COLEMAN J., dissenting.

Leo McNamee and Frank McNamee, Jr., both of Las Vegas, Malcolm Davis, of Los Angeles, Cal., and E. E. Bennett, of Mercedes Tex., for appellants.

Chas Lee Horsey, of Las Vegas, for respondent.

DUCKER Chief Justice.

Plaintiff brought this action as administrator of the estate of his deceased wife to recover damages for her death alleged to have been caused by the negligence of the defendants. The court, sitting without a jury, rendered judgment in his favor for the sum of $12,500. The defendants moved for a new trial, which was denied. This appeal is taken from the order of the court refusing a new trial and from the judgment.

In the early morning of February 12, 1932, in Clark county, John M. Lytle, Jr., the son of the plaintiff, accompanied by his mother, Vilate Lytle, was traveling in an automobile northerly along Federal Aid Highway No. 91, a state highway, commonly known as the Arrowhead Trail. He was driving. They had come from Los Angeles during the night and were on their way to Overton, the home of the parents. When they reached a point on the highway where it crosses the St. Thomas Branch Railroad of the defendant railroad company, the automobile ran into a gondola car which was standing on the branch line across the highway and Mrs. Lytle was fatally injured. The gondola car was a part of a train which the defendants were running westerly from St. Thomas to Moapa. Shortly before the automobile reached the intersection the train had arrived there and the crew was engaged in switching an empty car from a spur track just west of the crossing onto the branch line to attach it to the train. The switching operation could not have been accomplished if the train had pulled to the west so as to clear the crossing because the distance from there to where the spur joined the branch line was not great enough to accommodate all the cars of the train. If the train had stopped clear of the highway east of the crossing, then in order to accomplish the transfer of the empty car to the train two additional trips over the crossing would have been necessary, one forward by the engine and tender, and one back by the engine tender and empty car.

It was still dark when John Lytle, Jr., and his mother met with the accident. The highway on either side of the crossing was oiled and dark in color. The gondola car was painted black. By reason of the fact that the approach to the crossing from the south was located in a cut with high embankments and hills on each side extending to within a few feet of the railroad, the crossing was a hazardous one under any conditions. From a point several hundred feet to the south of the railroad to the crossing the highway was on a descending grade. There were no lights there and no flagman or employee of the railroad company to warn travelers on the highway that the crossing was blocked. There were two railroad warning signs along the highway to notify travelers of the crossing, one being an upright cross-arm sign about 20 feet south of the crossing, and one an upright post with a round sign on top of the post with bulls-eye reflectors marked "R. R.," located about 600 feet south of the crossing. It is a matter of common knowledge that the highway is a transcontinental highway and is used quite extensively both day and night. The regular schedule on the branch line was one train each way per day.

From about 1200 feet south of the crossing to it, the highway was straight. John M. Lytle, Jr., testified in plaintiff's behalf, in substance, as follows: He was 23 years of age in February, 1932. He used a 1929 Ford roadster on the trip. He knew how to drive and had driven a car a number of years before January 21, 1932. He drove a truck prior to that time quite a while. His business was driving trucks. The return trip to Overton from Los Angeles was started on the evening of February 11, 1932. On the night of February 10th he retired about 11 o'clock and had about 8 or 9 hours of sleep that night. He was never accustomed to getting any more sleep before he went on other trips. The automobile was in good condition and ran fine. It was equipped with good lights--standard equipment Ford headlights. The lights were sufficient to reveal an object 75 feet ahead of the lamps under normal conditions. The brakes were in good condition. They had been tried out before leaving town. He did not get off the road at any place and did not go to sleep. He was talking to his mother about a half or three-quarters of a mile from the crossing--told her they were almost home, or something to that effect. While he was driving down towards the crossing he was looking straight ahead watching the road. He had slowed down on the curve and as he approached the railroad he lessened his speed. The night was very dark and the highway was a black oiled road. He did not look for any train to be there because he did not see any lights to show that there was anything in the road. He was almost on the car before he saw it--about 20 feet away, or something like that. His best judgment was that he was traveling about 25 miles an hour at the time, and not more than 30. He tried to stop when he saw the gondola car across the road but could not. When he regained consciousness after the crash he was in the Las Vegas Hospital. The driver of the automobile was the only eyewitness to the accident, the mother having died shortly after the crash. None of the train crew saw it, but the conductor of the train heard the sound of the automobile striking the car.

John Williamson, a witness in behalf of plaintiff, testified in part as follows: He was present soon after the accident occurred at the intersection of the Arrowhead Trail and St. Thomas Branch of the Los Angeles & Salt Lake Railroad. The black gondola car was across the highway. There were cars between the black gondola car and the caboose, possibly two. There is considerable elevation there, and it is a rough country. There are hills and rocks which obstructed the view as to other cars and caboose. It was very dark that morning. He had to have a flash-light to work down there. The road had been oiled, and was dark in color, and the gondola car was dark in color. The hills on each side come pretty close to the road there. There is quite a cut there for several hundred feet approaching the railroad. The hills are not so dark in color. The road and the car naturally look dark at night. The hills are gray and brown, and they extend pretty well up on each side. On the one side they are about 15 feet, and possibly 10 or 12 feet on the other. There is more of a cut as you go down towards the railroad, and that cut runs about 400 feet.

Mr. Hitchcock, a witness for plaintiff, who lived near the scene of the accident, testified as to the environment. It was very dark that morning. He had to have a flash-light to walk down there. The road had been oiled and was dark in color, and the gondola car was dark in color. The hills on each side come very close. The road and car naturally looked dark at night. The hills are gray and brown and they extend pretty well up on each side. On the one side they are about 15 feet, and possibly 10 or 12 feet on the other. There is more of a cut as you go down towards the railroad, and the cut there runs down about 400 feet.

Albert Laub, a witness for plaintiff, who arrived at the scene, testified in part: It had been raining and the sky was very cloudy. When he got down there, there was a part of the train across the track--one car, and one car on each side of it. There is a deep cut there. The car that was across the highway was painted black. The highway was oiled, and it was really darker than a natural oiled road on account of being wet. It absorbed the light. The crossing is extremely dangerous.

Lamond Laub, a witness for plaintiff, testified in part as follows: He was there about 4:30. The road was wet. It was an oiled road and dark in color. It was very dark.

There was evidence that it had not been raining and that the highway there was wet with gasoline which had escaped from the wrecked automobile.

On this evidence and other evidence introduced by defendants, which we will mention later, the trial court made a number of findings, which included findings that the time consumed in switching was not more than five minutes; that during this time defendants had left a black gondola car attached to other cars directly across the intersection of the highway with the railroad; that the highway was oiled on both sides of the intersection and was of a black color; that the highway west of the intersection was constructed in a cut which left high embankments on each side of the highway and which extended to within a few feet of the railroad crossing; that there were two railroad crossing signs along the highway, one being an upright cross-arm sign about 20 feet south of the crossing, and the other an upright post with a round sign on top of the post with bulls-eye reflectors marked "R. R." located 600 feet south of the crossing; that there were no lights at the crossing and no flagman or employee of the railroad company to warn travelers on the highway of the existence of the gondola car at the crossing; that said crossing was an extrahazardous one when approached on said highway from a...