O'Brien v. Great Northern Ry. Co.

• Decision Date: 17 February 1965
• Docket Number: No. 10612,10612
• Citation: 400 P.2d 634,145 Mont. 13
• Parties: Terryayne O'BRIEN, a minor, Sherman O'Brien, a minor, Marlys O'Brien, a minor, by their guardian ad litem, Lola O'Brien, and Lola O'Brien, Plaintiffs and Respondents, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, John S. Johnson, and George M. D'Hooge, Defendants and Appellants.
• Court: Montana Supreme Court

Page 634

400 P.2d 634

145 Mont. 13

Terryayne O'BRIEN, a minor, Sherman O'Brien, a minor, Marlys O'Brien, a minor, by their guardian ad litem, Lola O'Brien, and Lola O'Brien, Plaintiffs and Respondents, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, John S Johnson, and George M. D'Hooge, Defendants and Appellants.

No. 10612.

Supreme Court of Montana.

Submitted April 7, 1964.

Decided Jan. 25, 1965.

Rehearing Denied Feb. 17, 1965.

Edwin Booth (argued), Cordell Johnson (argued), Helena, Harry L. Burns, Chinook, for appellants.

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

DOYLE, Justice.

This is an appeal from a verdict and judgment rendered in favor of the plaintiffs in an action to recover damages as a result of the death of the plaintiffs' decedent, Eugene J. O'Brien, in a collision between a Great Northern Railway engine and a car driven by the decedent.

The Great Northern Railway's facilities existing at the scene of the accident, or as much thereof as is here relevant, consist of one mainline track running east-west and one passing track, both of which run paralone to, and 150 feet north of U.S. Highway 2. Approximately one-half mile east of the town of Chinook these tracks are joined from the south by a spur track which runs to a beet hopper and conveyor located about 760 feet south of Highway 2. As this spur approaches the highway it runs in a north-easterly-southwesterly direction so that it intersects the highway at about a 45 degree angle. This intersection was the scene of the accident which gave rise to the present litigation. Approximately 400 feet west of the beet spur crossing, the defendant operates an additional spur track which intersects Highway 2 in much the same fashion as the one just described. Although this latter spur and the defendant's operation thereon do not figure directly in the accident they are important for reasons which will be discussed later. This court has had prepared and included a map, which is a composite of plaintiffs' and defendant's exhibits, designated as Exhibit 'A' for the purpose of clarification of the accident area.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On October 20, 1958, shortly after 7:00 P.M., defendant's Railway engine Number 231, manned by defendants, Engineer Johnson, Head Brakeman D'Hooge, and a fireman, a conductor and two rear brakemen backed down the beet spur to pick up several cars, some loaded with beets, some empty. These cars were hooked up. The engine and cars, at a speed of approximately three to four miles per hour, returned up the spur track and at 7:30 P.M., at the intersection of Highway 2, the car driven by the decedent Eugene O'Brien crashed into the pilot beam of Engine 231 on the right, or east side.

Plaintiffs' complaint, in substance, alleged negligence on the part of defendants in that they failed to maintain a proper lookout; failed to maintain a warning at the crossing; failed to station a flagman at a dangerous crossing; failed to properly signal the approach of the train as it neared the crossing; and, that such negligence was the proximate cause of the accident and the resulting death of Eugene O'Brien.

In support of these allegations, plaintiffs at trial called three witnesses, Epler, Brown and Riddle. Epler testified that when he had crossed the crossing on his way to Chinook there had been no flagman present. He also testified that he had seen an engine to the south, about 300 to 400 feet distant, and that its headlight was burning. Riddle, who was a passenger in the car driven by Epler, testified to materially the same facts, except that in Riddle's estimation the approaching engine was considerably closer, about 100 feet. Epler further testified on cross-examination that he had crossed the intersection about 10 minutes before the accident had occurred and Riddle agreed. blowing at the time that they had crossed belowing at the time that they had crossed the intersection. Brown, accompanied by his father, had left Chinook by car traveling eastward on Highway 2; he had stopped his automobile at the intersection to await the crossing of defendant's train. He testified that he saw the approach of the train from the south and also that he had seen the lights of a car coming from the east. He also stated that he heard a whistle below. He further testified that he saw neither a flagman nor a burning fuzee. On cross-examination, however, he testified that neither he nor his father had paid particular attention to the engine or the crossing immediately before the accident, but were directing their attention and faculties to the beet operation to the south. He also stated that, immediately after the crash he ran around the front of the engine and that he saw a fuzee about four or five inches in length, still burning, lying in the middle of the bridge.

In direct conflict with the testimony of these witnesses for the plaintiffs, defendant elicited testimony from Engineer Johnson and the two rear brakemen to the effect that they had seen defendant D'Hooge standing in the roadway, on the east side of the crossing, and that he was signaling with a lighted fuzee. Fireman Bolta, although he was on the opposite side of the engine, testified that, while he could not see D'Hooge, he could see the glare of the lighted fuzee on the crossing. D'Hooge himself testified that he was signaling with a lighted fuzee and that at the last moment had had to jump from the roadway to avoid being run down by the approaching auto driven by the decedent. All the defendant's witnesses testified that the whistle and bell on the engine were sounding prior to and at the time of the actual collision. In addition to the burning headlight, defendant's witnesses also testified, without contradiction, that the engine was further lighted by two classification lights, two lights illuminating No. 231, and two lights illuminating the steps on the front of the engine, the 'pilot', which were used by members of the traincrew. Defendant, by plats, photographs and supporting testimony established that at the time of the accident there were three warning signs located at distances of 1,775 feet, 522 feet, and 164 feet on the highway east of the crossing; that all of them were reflectorized and that all were visible to anyone approaching the crossing on the highway from the east. Defendant produced other photographs and related testimony from its witness Lindgren which showed without contradiction that, from a point 800 feet east of the crossing, anyone driving on Highway 2 and approaching the intersection had an unobstructed view of the spur track for a distance of 100 feet to the south.

Witnesses for both parties testified that decedent's automobile had left skid marks of 66 1/2 feet on the highway; that the impact of the car striking the engine had been such that it had forced the motor of the car into the front seat of the auto; and, that the removal of the auto from the front of defendant's engine was accomplished by 'two or three pulls' of a wrecker.

Expert witnesses called by both parties testified as to speed, stopping distances, operation and effectiveness of locomotive and train brakes when applied to units similar to the one operated by the defendant on the night of the occurrence, all of which was in substantial agreement.

The case was given to the jury, under instructions; the two issues being the primary negligence of the defendants and contributory negligence on the part of the plaintiffs' decedent. From a verdict in favor of the plaintiffs in the amount of $170,000 and judgment thereon, defendant appeals.

In its initial brief appellant sets out seventeen specifications of error. Those which we consider determinative of this appeal, or sufficiently relevant thereto, are numbers 5 through 13, and we shall take them up in the order presented in appellant's brief.

Appellant assigns as error the admission of testimony, over appellant's objection, that, in the opinion of the witness, the decedent was not exceeding the speed limit.

Garland, the respondent's witness, at the time of the accident was a highway patrolman and had investigated the accident in that capacity. On direct and crossexamination the witness admitted that he was not an eye witness to the accident, having arrived some five minutes thereafter; that, due to the impact, there was no way to determine the speed of the vehicle from the skidmarks on the highway; and, that he was not familiar with stopping distances in terms of speed. Shortly thereafter, in response to a question of whether there was any evidence of violation of the speed limit by the decedent, he replied, over appellant's objection, 'I don't know whether I could judge and give a conclusive answer to that or not. In my own mind I don't think the man was exceeding the speed limit.' We think that the witness' answer was predicated on pure speculation and conjecture; the appellant's objection that the question was without proper foundation and called for a conclusion was valid and should have been sustained. In view of the fact that the witness was a highway patrolman testifying as an expert witness, the testimony given by him might have been accorded considerable weight by the jury, and, inasmuch as it tended to establish the freedom of the decedent from contributory negligence, it was unduly prejudicial to the appellant's case and therefore reversible error to admit it.

In their specification of error number 6, the appellant contends that the lower court erred when it sustained the respondents' objection to its question propounded to the witness Epler, on cross-examination, as to where he went after he arrived in Chinook.

Having before us now the complete record of the proceedings below, it is obvious that the appellant, by this question, was attempting to establish that the engine movement to the south to which both Epler and...