Buchholz v. Union Pac. R. Co.

• Decision Date: 20 May 1957
• Docket Number: No. 17811,17811
• Parties: Victor H. BUCHHOLZ, Plaintiff in Error, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 717

311 P.2d 717

135 Colo. 331

Victor H. BUCHHOLZ, Plaintiff in Error, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Defendant in Error.

No. 17811.

Supreme Court of Colorado, En Banc.

May 20, 1957.

G. E. Hendricks, Julesburg, for plaintiff in error.

E. G. Knowles, Clayton D. Knowles, Denver, Richard D. Dittemore, Julesburg (W. R. Rouse, F. J. Melia, Omaha, Neb., of counsel), for defendant in error.

SUTTON, Justice.

This is an action in tort for damages. The parties appear here in the same order as in the trial court and will be so referred to herein.

Plaintiff's complaint alleged that defendant railroad on February 4, 1952 'carelessly, negligently and recklessly drove or caused to be driven one of its trains into and against a Ford V 8 truck owned by the plaintiff, at the intersection of its tracks with Cedar Street in the Town of Julesburg.' Colorado; further that Cedar Street is a main public highway; that as a result thereof plaintiff's truck was wrecked and damaged in the amount of $2,700 and that plaintiff was deprived of its use for two months to his damage in the sum of $200. No claim was made for the death of the driver who was killed.

Defendant's answer admitted the accident but denied that it was in any way careless, negligent or reckless, and denied plaintiff's damages. Defendant further alleged as affirmative defenses that plaintiff's father, William H. Buchholz, as agent of plaintiff, acting within the scope of his authority, was driving the truck at the time of the accident; and that said driver was negligent or guilty of contributory negligence. The defendant also set out a 'cross-complaint' alleging that the driver recklessly and negligently drove upon the tracks of defendant and was there struck, damaging defendant's train in the amount of $1,000 and its trucks and signal in the amount of $500.

Plaintiff's answer to the cross-complaint admitted that plaintiff's father was the driver, denied all other allegations and set up the affirmative defense of contributory negligence.

Trial was to a jury. Following presentation of plaintiff's evidence the trial court directed a verdict for defendant on plaintiff's complaint, and on defendant's cross-complaint, and submitted the case to the jury on the question of defendant's damage only. The jury returned a verdict for defendant on its cross-complaint in the amount of $397.77. Judgment was entered accordingly on April 26, 1955, with no costs awarded. Plaintiff's motion for a new trial was overruled and he is here by writ of error asserting it was error:

1. To take from the jury the question of negligence and contributory negligence.

2. To direct a verdict for defendant and to instruct the jury to find for the defendant as to its alleged damages.

3. To exclude plaintiff's evidence and offer of proof that the flashing light signal was not effective because it allegedly was either not working or was apparently not working due to the reflection of the early morning sun.

4. To exclude evidence and offer of proof as to alleged prior accidents and near escapes of others at the same site.

5. To exclude evidence and offer of proof of the alleged large volume of traffic both in trains and cars that allegedly used the crossing and that the warnings provided were not sufficient or reasonable therefor.

6. To exclude evidence and offer of proof of a witness who allegedly knew that the morning sunlight reflected in such a manner as to make it impossible to know whether the signal was flashing.

7. To admit defendant's Exhibits 2 and 3 although allegedly no witness could testify that either of them was correct except from hearsay.

For brevity we will consolidate the above alleged errors into four questions and answer them in a different order than presented.

The first question to be determined is: Did the trial court err in refusing to admit certain of plaintiff's evidence, and in denying offers of proof?

This question is answered in the negative.

These denials and offers were: Whether the flashing signal light was working or could be seen; evidence of alleged prior accidents and near escapes; the volume of traffic and adequacy of warning devices; and testimony as to alleged ineffectiveness of the signal light.

Plaintiff's evidence disclosed that the accident occurred about 7:25 a. m. at a point where there were six railroad tracks; that the collision occurred at the northernmost track and involved a westbound train; that the flashing signal light involved was located between the switching tracks to the south and the main tracks to the north; and that the deceased driver, who was proceeding north, had stopped before entering his position of peril. Also that the driver was very familiar with the crossing and knew of the heavy train traffic, with trains running through the town at speeds of fifty-five to seventy miles per hour. It is clear from the record that even if the signal was not working, its failure was not a proximate cause of the tragedy. This is also true of the driver's intermittently obstructed vision to the main tracks caused by railroad structures and railroad cars which lay to his right. The driver knew of the hazards and recognized all of them when he stopped his truck before he entered upon the main westbound track. He had a duty to look and listen and to stop if a train was approaching. He also had a duty not to proceed until he could do so with reasonable safety. The evidence established that his truck, after stopping, moved forward at a speed of four to six miles per hour and that the point from which he could first see the train, without further sight interference, was approximately twenty-one feet from the fatal site, according to defendant's calculations and not less than nine feet according to plaintiff's evidence. It is clear that if the driver had looked carefully he would have seen the train approaching, and would and should have stopped in time to avoid a collision.

There was no evidence to show that a flashing light would have made any difference, for the driver had in fact stopped before proceeding upon the tracks; or that the alleged prior accidents or near escapes were under comparable conditions; or that there was an unusual volume of vehicular traffic to district the driver or that the volume of such was heavy at the hour in question. All this evidence was properly excluded. We note there was no evidence that defendant had violated any ordinance or statute.

The second question to be determined is: Was it error to direct a verdict in favor of defendant upon plaintiff's complaint?

This question is answered in the negative. It was the duty of the trial court to direct a verdict against plaintiff upon his complaint. Chicago, M. & St. P. Ry. Co. v. Bennett, 8 Cir., 181 F. 799. In so holding we note no evidence in the record to support the claim that defendant created a condition of apparent safety so as to mislead the driver or to lure him to his death, as plaintiff alleges.

It is inexplicable why this driver did not see the train approaching when he had stopped for that very purpose, and then entered upon a place known to be dangerous at a speed of four to six miles per hour, which even then would have enabled him to stop instantly. Such evidence shows a lack of due care and caution; was negligence, and a proximate cause of the accident.

In the early case of Chicago, R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 P. 286, 287, this court said in reversing a judgment against the railroad:

'The degree of care to be used by a traveler in crossing a railroad is measured by the conditions surrounding the place of crossing; and where, by reason of obstruction, his view of the railway track is shut off, it is his duty to exercise a higher degree of care than if the track is open to view, and the precautions to be taken must be such as are calculated to inform him of the fact whether a train is approaching or not.'

Later in Westerkamp v. Chicago, B. & Q. Ry. Co., 41 Colo. 290, 92 P. 687, 689, where negligence on the part of the railroad was admitted, this court said:

'From all the facts and circumstances there is but one conclusion deducible, viz., he did not look, because, if he had, he could not have failed to discern the train approaching the crossing he was about to drive over. * * * Plaintiff not having looked for the approach of the train which struck his wagon failed to exercise that degree of care which he should, and it is beyond dispute that such failure was the proximate cause of his injury.' (Emphasis supplied.)

The case of Headley v. Denver & R. G. R. Co., 60 Colo. 500, 154 P. 731, 734, cited by defendant, though different in its facts and involving admitted negligence of the railroad, nevertheless sets forth the duty of one who is crossing railroad tracks. There a verdict was directed in favor of the railroad and affirmed by this court saying:

'Moreover, the duty resting upon deceased to look and listen before advancing upon this track was a legal obligation, which he was bound to discharge, unless excused therefrom by some peculiar facts of the case. In other words, it is the imperative duty of one attempting to cross several tracks not to cease his watchfulness upon crossing the first or second in safety, but to continue to exercise his senses, and be observant of the obvious conditions until the crossing has been accomplished, unless the railroad company, through its acts, has produced a condition of apparent safety wherein reasonable men might have different views as to the necessity of looking and listing. Diligence, in order to be effective, must cover the whole field of danger, and where it is inherent in a continuing state of things the duty to exercise the care which the law imposes is a continuing obligation.'

Further, in answer to the contention that the silent crossing bell implied that no train was approaching, the court said in 60 Colo. at page 515, 154 P. at page 737:

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