O'Brien v. Great Northern R. Co.

• Decision Date: 17 January 1967
• Docket Number: No. 11057,11057
• Citation: 421 P.2d 710,148 Mont. 429
• Parties: Terryayne O'BRIEN, a minor, Sherman O'Brien, a minor, Marlys O'Brien et al., Plaintiffs and Respondents, v. GREAT NORTHERN RAILROAD COMPANY et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 710

421 P.2d 710

148 Mont. 429

Terryayne O'BRIEN, a minor, Sherman O'Brien, a minor, Marlys O'Brien et al., Plaintiffs and Respondents, v. GREAT NORTHERN RAILROAD COMPANY et al., Defendants and Appellants.

No. 11057.

Supreme Court of Montana.

Submitted Oct. 3, 1966.

Decided Dec. 29, 1966.

Rehearing Denied Jan. 17, 1967.

Weir, Gough & Booth, Edwin S. Booth (argued), Cordell Johnson (argued), Helena, Harry L. Burns (appeared), Chinook, for appellants.

D. J. Sias, Oscar Hendrickson (argued), Chinook, Baxter Larson (argued), Wolf Point, for respondents.

CASTLES, Justice.

This is an appeal from a judgment awarding the plaintiffs $204,000 damages for the death of Eugene J. O'Brien which resulted when an automobile he was driving collided with a Great Northern Railway locomotive.

The accident occurred October 20, 1958, sometime after 7:00 P.M. at a point where U. S. Highway 2 crosses a Great Northern Railway beet spur near Chinook, Montana. The spur track leads northeast from a sugar beet loading facility, crosses east-west Highway 2 at about a 45 degree angle and connects to the mainline tracks which run parallel to Highway 2 and about 150 feet north. At the point where the spur connects, the mainline consists of a double set of tracks; the main track to the north and a passing track to the south.

O'Brien approached the crossing from the east while traveling west on Highway 2. The sun had set and he approached against the lights of the City of Chinook which is a little less than a mile from the beet spur crossing. As he approached he passed a 'slow' sign and a railroad crossing or common 'cross buck' sign. Engine 231 had been sitting 15 car lengths or about 750 feet from the crossing waiting for the crew to finish coupling the cars they had been sent to pick up. The defendant-engineer, Johnson, testified that he gave the customary two short blasts on the whistle to indicate that the train was about to move and started the bell ringing. Engine 231 was then started forward toward the crossing at about 8 miles per hour and decelerated to about 4 miles per hour before reaching the crossing. The engineer observed the oncoming O'Brien automobile at some distance but did not at first see a need to stop the train. At approximately the same time, an east bound freight, extra 410D, was accelerating from a stop on the mainline track so that it passed Engine 231 north of the spur track crossing near the time of the accident.

At this point, the testimony comes into serious dispute. The appellants, hereinafter called the defendants, attempted to prove that head brakeman D'Hooge was at the spur crossing prior to the arrival of Engine 231 and was facing the approaching O'Brien car flagging with a lighted fusee and was forced to jump out of the way to avoid being struck. There was also testimony by persons who had heard one or more whistles blow, but this was met with testimony of others who had either not heard any whistles or could not tell if the whistle heard was that of Engine 231 on the beet spur or that of Extra 410D on the mainline track. The testimony of the crew of train 231 was that the O'Brien automobile continued to approach at a rate faster than the other traffic in the area and that Engine 231 continued toward the crossing at about 4 miles per hour. The engineer further testified that he applied the full emergency braking system when he determined that the O'Brien car was not going to stop.

The O'Brien car struck the right front portion of Engine 231 imbedding itself into a ladder and 'pilot' beam. Testimony from several witnesses indicated that there was 66 1/2 feet of skid marks left by the O'Brien car and that the force of the impact was such that a wrecker experienced some difficulty in separating the locomotive and the car.

It was completely dark at the time of the collision but there were no significant obstructions to visibility. A sign welcoming travelers to Chinook might have obscured the locomotive for a short period as the O'Brien car approached, but it would have ceased to have been a factr long before it would have been necessary for O'Brien to begin decelerating for the crossing. There seems to be no question that the lights of the City of Chinook on the side of the crossing opposite the O'Brien car and the lights of an oil refinery to the side of the crossing would have provided some undetermined amount of distraction. The land where the tracks run in this area is level except for a bridge over the West Fork of the Milk River which runs less than a hundred feet from the crossing. Engine 231 had its bright beam illuminated in the front of the train as well as the 'number' light and several smaller 'ground' lights on the side. O'Brien had the headlights on his automobile illuminatd and the warning signs he passed as he approached the crossing were claimed to have been reflectorized. Several witnesses testified that they were able to observe traffic on both sides of the tracks at distances of several hundred feet.

The testimony of persons who were eyewitnesses to the collision or viewed the scene within a very few moments thereafter were limited to the crew of trains 231 and 410D; the passengers from a car which approached the crossing from the west and walked around the front of Engine 231 immediately after they heard the collision, and; the passengers of a car which approached behind the O'Brien car shortly after the collision.

The widow of O'Brien and his three dependent children brought an action sounding in negligence against the railroad corporation, the engineer and the head brakeman of train 231. The answer alleged contributory negligence which was in turn answered by allegations invoking the doctrine of last clear chance. Plaintiffs had judgment for $170,000. Defendants appealed and this court reversed and remanded for a new trial in its decision, O'Brien v. Great Northern Ry. Co., 145 Mont. 13, 400 P.2d 634. Upon the second trial, plaintiffs had judgment for $204,000 from which the defendants bring this appeal.

Defendants base their appeal on the grounds that there is insufficient evidence to find any primary negligence on the part of the defendants; that the defendants' motion for a directed verdict should have been granted because the plaintiffs' decedent was contributorily negligent as a matter of law, and; that the verdict was excessive. We find that the issue of contributory negligence and the court's refusal to grant a directed verdict thereon to be determinative of this appeal, and therefore this will be the only specification of error considered in this appeal.

Upon a motion for a directed verdict the evidence must be viewed from a standpoint most favorable to the prevailing party and every fact must be deemed proved which the evidence tends to prove. Hernandez v. Chicago, B. & O. Ry. Co., 144 Mont. 585, 398 P.2d 953. All substantial evidence disclosed by the record which may be used to sustain the jury verdict will be given its full probative effect. Estate of Dillenburg, 136 Mont. 542, 349 P.2d 573. Therefore, this opinion is rendered under the assumptions that there was no flagman at the crossing; that no fusee was used prior to the collision, and; that the deceased was traveling a legal and reasonable rate of speed. (This assumption in spite of strong physical evidence to the contrary.)

It is the duty of every motorist approaching a railroad crossing to conduct himself as would a reasonably prudent man under similar circumstances and to comply with all statutory mandates. Failure to fulfill either of these duties constitutes negligence which, if shown to have been the proximate cause of the injury complained of, will operate as a complete bar to any recovery thereon even though the defendant is shown to have been negligent. Tiddy v. City of Butte, 104 Mont. 202, 65 P.2d 605.

A reasonably prudent man approaching a railroad crossing would be expected to look and listen to determine what hazzards may be present and to use diligence to make the act of using his senses effective. Hannigan v. Northern Pacific Ry. Co., 142 Mont. 335, 344, 384 P.2d 493, 498. He is charged not only with the duty of looking straight ahead but he must keep a lookout laterally as well. It is presumed that he will see that which he must have seen if he looked. Montforton v. Northern Pacific Ry. Co., 138 Mont. 191, 355 P.2d 501; Autio v. Miller, 92 Mont. 150, 11 P.2d 1039. Where the evidence raises this presumption and it is not later rebutted by other evidence it has the effect of placing a driver in the position of having seen the danger and he will not be heard to deny it. If a train is at a point within the driver's vision while he was at a place of safety he is deemed to have seen it and progressed regardless of the danger or he did not make use of his senses. Feely v. Northern Pacific Ry. Co., 9 Cir., 230 F.2d 316.

Applying the plaintiffs' own evidence to the rules just set forth we conclude that O'Brien was not acting as a reasonably prudent man when he was approaching the crossing. The physical facts of the beet spur crossing coupled with a judgment of the relative speeds of the engine and the O'Brien car which is the most favorable possible to the plaintiffs' case make it impossible for us to reach any conclusion other than that O'Brien could have seen Engine 231 and reacted to the danger if he had tried to do so. The very slight degree of obstruction to O'Brien's visibility is particularly impressive. Proceeding as he did, he overlooked not one but two complete trains. There seems to be no reason to doubt that O'Brien knew of the existence of the crossing. It would even be fair to infer that he was familiar with the beet spur crossing. In spite of his familiarity with the crossing he proceeded forward without any substantial change of speed until at a point a little more than 66 1/2 feet from the crossing where his brakes became effective with sufficient force to leave...