Branson v. Northern Pacific Railway Company, 6154

• Decision Date: 18 January 1935
• Docket Number: 6154
• Citation: 55 Idaho 220,41 P.2d 629
• Parties: KENNETH K. BRANSON, Administrator of the Estate of JOHN K. PETERSON, Deceased, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and FRANK REGERIO, Appellants
• Court: Idaho Supreme Court

41 P.2d 629

55 Idaho 220

KENNETH K. BRANSON, Administrator of the Estate of JOHN K. PETERSON, Deceased, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and FRANK REGERIO, Appellants

No. 6154

Supreme Court of Idaho

January 18, 1935

RAILROADS-CROSSING ACCIDENT-NEGLIGENCE-EVIDENCE-SPEED-SIGNAL - OBSTRUCTION ON CROSSING - CONTRIBUTORY NEGLIGENCE - QUESTIONS FOR JURY-DOCTRINE OF LAST CLEAR CHANCE-MOTION FOR NONSUIT.

1. Evidence that railroad company maintained whistlepost near private crossing until short time before locomotive struck truck thereat held admissible in action for truck driver's death.

2. Whether train, traveling at such speed that it was impossible for engineer to stop it within range of his sight along track ahead; or see truck on private crossing in time to avoid collision therewith, was negligently operated, held for jury.

3. Whether railroad motorcar, placed on or near private road by section crew, obstructed crossing, and truck driver should have seen it before driving on track or within danger zone held for jury in action for driver's death when locomotive struck truck.

4. Evidence, in action for death of driver of truck struck by locomotive at private railroad crossing, held sufficient to justify jury's finding that decedent would have had time to drive across track before locomotive arrived had railroad motorcar not so obstructed road as to prevent truck from passing it with attached hayrake.

5. Motion for nonsuit admits truth of all of plaintiff's evidence, and he is entitled to have drawn therefrom all reasonable inferences favorable to him.

6. Contributory negligence is generally fact question for jury and never one of law, unless evidence is reasonably susceptible of no other interpretation than that injured party's conduct contributed to injury and that he did not act as reasonable and prudent person would have acted under circumstances.

7. Truck driver's contributory negligence in failing to observe approaching train while seeking to determine whether hayrake attached to truck would pass railroad motor-car partly on private crossing, held for jury in action for his death in collision between locomotive and truck.

8. Jury properly concluded that truck driver, killed in collision between locomotive and truck at private crossing, was not contributorily negligent in failing to observe train's approach while seeking to determine whether hayrake, attached to truck, would pass railroad motorcar partly on crossing, if they found that he acted as reasonably prudent person would have acted under like circumstances.

9. Distance at which locomotive engineer should have seen truck on private crossing, and whether he acted as reasonably prudent person would have acted under like circumstances to reduce speed of train and give warning of its approach to crossing, held for jury.

10. Under last clear chance doctrine, it was duty of locomotive engineer, seeing or so situated that he should have seen truck on private crossing, to do all he could to avoid injuring or killing driver thereof.

11. Whether locomotive engineer should have applied brakes sooner than 250 or 225 feet from private crossing, at which locomotive struck truck, killing driver, and should have sounded alarm, held for jury.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Everett E. Hunt, Judge.

Action for damages resulting in judgment for plaintiff, from which and from an order denying their motions for new trial and for judgment notwithstanding the verdict defendants have appealed. Affirmed.

Judgment and order affirmed. Costs awarded to respondent. Petition for rehearing denied.

Cannon McKevitt & Fraser and O. J. Bandelin, for Appellants.

A person familiar with the conditions existing at a private farm railroad crossing and having knowledge of the time and manner of train movements who attempts to cross the railroad tracks in an automobile truck at such a place in front of a rapidly approaching train operating on schedule time, when slight attention and care on his part while in a safe place would have disclosed its near approach, is guilty of contributory negligence as a matter of law. (Rumpel v. Oregon Short Line & U. N. R. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 725; Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 102 P. 897; Burrow v. Idaho & W. N. R. R., 24 Idaho 652, 662, 135 P. 838.)

Where no reliance has been placed upon the giving of crossing signals at a private farm railroad crossing in a country district there exists no duty on the part of the train operators for the giving of such signals. (22 R. C. L. 1004; Simpson v. Louisville H. & St. L. R. Co., 207 Ky. 623, 269 S.W. 749; Louisville & N. R. Co. v. Engleman, 135 Ky. 515, 122 S.W. 833, 21 Ann. Cas. 565.)

If the deceased was negligent in placing himself in a position of peril, and if such negligence continued to the moment of the collision, the defendant is not liable under the last clear chance doctrine unless it appears that it could have avoided the collision by exercising reasonable care after actually discovering the peril. (Pilmer v. Boise Traction Co., Ltd., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Neil v. Idaho & W. N. R. R., 22 Idaho 74, 125 P. 331; Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; 11 C. J. 283.)

Whitla & Knudson, for Respondent.

Duty of railroad company to keep crossing reasonably safe and not obstruct same. (Tennessee Cent. Ry. Co. v. Hancock's Admx., 245 Ky. 426, 53 S.W.2d 708; Central of Georgia Ry. Co. v. Dumas, 44 Ga.App. 152, 160 S.E. 814.)

Speed becomes an element where the crossing view is obstructed and dangerous. (Morrison v. Boston & M. R. R., (N. H.) 164 A. 553; Hartman v. Chicago Great Western Ry. Co., 132 Iowa 582, 110 N.W. 10.)

Whether deceased might have escaped if the alarm signal was given is for the jury. (Tyrrell v. Boston & M. R. Co., 77 N.H. 320, 91 A. 179; Thompson on Negligence, vol. 2, par. 1583.)

Doctrine of last clear chance applicable in this case. (Pilmer v. Boise Traction Co., Ltd., supra; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; York v. Alho, 52 Idaho 528, 16 P.2d 980.)

MORGAN, J. Holden, J., concurs, Givens, C. J., and Budge and Wernette, JJ., concur in the conclusion.

OPINION

MORGAN, J.

Shortly after nine o'clock in the forenoon of October 8, 1932, John K. Peterson drove a loaded truck, to which was attached a hay rake, leaving a farm he had occupied during about three years previously. The main line of the Northern Pacific Railway Company ran through the farm, in an easterly and westerly direction, parallel to and a short distance south of a public highway toward which Peterson was going. Peterson drove the truck along a private road which crossed the railroad track at a private crossing, which road and crossing were used by all who had occasion to visit his premises, and had been so used during all the time he had occupied the place and many years prior thereto.

On the morning of October 8, 1932, the section crew of the railway company, by direction of its foreman, appellant Regerio, placed a small motor car, used in doing the work of the crew, on the south side of the railroad track on, or in close proximity to, the approach to the crossing. There is conflict in the testimony as to the exact position of the motor car, but the evidence sustains respondent's contention that it was placed about six feet south of the south rail of the track, and that the front and rear wheels on the east side of the motor car stood in the wheel tracks along the west side of the traveled part of the road. The crossing was planked 16 feet wide and the road approaching the planking was of varying widths of from 8 to 16 feet. According to the testimony on behalf of respondent the motor car was so placed that it obstructed the crossing and interfered with the passage of the rake.

The private road approached the crossing from the south on a curve until it reached a point 52 feet south of the railroad track, and weeds and brush had been permitted to grow south of the railroad and west of the private road so that the view of the motor car was obscured until Peterson reached that point. View of the railroad track east of the crossing was unobstructed, but it approached the crossing from the west on a curve and through a cut, between 9 and 10 feet deep at the deepest point, and the right of way and land adjoining the cut, to the west of the private road and south of the railroad track were grown up with weeds and brush to such extent as to obstruct the view, from the road, of a train until it was within 300 or 400 feet of the crossing, the exact distance being in dispute.

As Peterson approached the crossing a boy, 17 years old, was riding with him in the cab and another boy, about the same age, was walking, or running, behind the truck. The boy in the cab testified both he and Peterson were looking for the approach of a train from the west as they came near the crossing, and they continued to so look until the truck reached the track. Apparently Peterson did not see the motor car until about the time the front of the truck reached the railroad, and the boy who was riding testified he did not himself, see it until then. Peterson stopped the truck on the railroad track and asked the boy to look back and see if the rake would clear the motor car. He testified he did so and the rake would not clear, but the wheel, which was within a few feet of it, would strike the motor car near the middle if they went forward; that as he turned back from making this inspection he saw the locomotive of a train approaching from the west and it was from 100 to 150 feet away; that at...