Burrow v. Idaho & W.N.R.R.

Decision Date27 September 1913
Citation135 P. 838,24 Idaho 652
CourtIdaho Supreme Court
PartiesMARY A. BURROW, as Administratrix of the Estate of WILLIAM J. BURROW, Appellant, v. IDAHO & WASHINGTON NORTHERN RAILROAD, a Corporation, Respondent


1 Sess. Laws 1909, p. 334, sec. 1, provides three classes which may be examined by adverse party as if under cross-examination: 1st. A party to the record of any civil action or proceedings; 2d. The person for whose immediate benefit such action or proceedings is prosecuted or defended 3d. The directors, officers, superintendent or managing agents of any corporation which is a party to such record.

2. Sec 2821, Rev. Codes, provides that a bell of at least twenty pounds' weight must be placed on each locomotive engine and be rung at a distance of at least eighty rods from the place where the railroad crosses any street road or highway, and be kept ringing until it has crossed such street, road or highway; or a steam whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corporation operating the railroad, which may be recovered in an action prosecuted by the prosecuting attorney of the proper county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomotives trains, or cars, when the provisions of this section are not complied with.

3. The law governing a person approaching a railroad crossing, as announced by this court in a number of cases, is, that a person approaching the railroad crossing, whether a street crossing in a city or a crossing over a public highway in a country district, is required to stop, look and listen for an approaching train, and that the failure to do so is negligence per se.

4. A railroad company has the right to assume that the traveling public will look and listen for a passing train, and that having looked and listened, they will discover the on-coming train and clear the track. The traveler has an equal and like right to assume that the railroad company will give the required signals of the train's approach and that it will be running and operating its trains at such places at the usual and ordinary rates of speed.

5. Held, in this case, 1st, that the respondent was not guilty of negligence; 2d, that the deceased was guilty of contributory negligence, and that the trial court did not err in instructing the jury to find a verdict for the respondent.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. J. M. Flynn, Judge.

An action to recover for personal damages. Affirmed.

Judgment affirmed. Costs awarded to respondent.

McFarland & McFarland, for Appellant.

A motion for a nonsuit should be granted only when the evidence wholly fails to support the demand of the plaintiff. ( Adams v. Bunker Hill Min. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Idaho Comstock etc. Co. v. Lundstrum, 9 Idaho 257, 74 P. 975; York v. P. & No. Ry. Co., 8 Idaho 574, 69 P. 1042; Wheeler v. Oregon etc. Nav. Co., 16 Idaho 375, 102 P. 347.)

The question as to whether or not the plaintiff was guilty of contributory negligence is for the jury to decide. It is their province to decide the fact of contributory negligence, even though the testimony of the defendant tends to establish that fact, if from the physical facts surrounding the accident a different conclusion might be reached. ( Chesapeake & Ohio R. Co. v. Young's Admr., 146 Ky. 317, 142 S.W. 709; Dutcher v. Wabash R. R. Co., 241 Mo. 137, 145 S.W. 63; Dennis v. New Orleans R. Co. (Miss.), 32 So. 914.)

"Where equally reasonable persons might conscientiously differ on the subject of contributory negligence, then the question is for the jury to decide." (Greenawaldt v. Lakeshore R., 165 Ind. 219, 73 N.E. 910; Stoy v. Louisville R. R. Co., 160 Ind. 144, 66 N.E. 615; Malott v. Hawkins, 159 Ind. 127, 63 N.E. 308; Chicago B. & M. R. v. Harley, 74 Neb. 462, 104 N.W. 862; Christianson v. Oregon Short Line, 29 Utah 192, 80 P. 746; Defrieze v. Illinois Central R. (Iowa), 94 N.W. 505; St. Louis & S. F. R. Co. v. Knowles, 6 Kan. App. 790, 51 P. 230.)

"It is not sufficient that evidence on behalf of defendant tended to show that deceased was guilty of contributory negligence, but before the court can declare this as a matter of law, the evidence must be substantially all one way and not such as reasonable men might differ with respect thereto." ( Weller v. C. M. & St. P. R. Co., 164 Mo. 180, 86 Am. St. 592, 64 S.W. 141; Hornstein v. United R. R. Co., 97 Mo.App. 271, 70 S.W. 1105; Riska v. Union Depot, 180 Mo. 168, 79 S.W. 445.)

"Failure of one approaching a railroad crossing to look and listen is not negligence per se, but it is for the jury to determine from all the attending circumstances whether ordinary and due care was used." (Galveston H. & S. A. R. Co. v. Harris, 22 Tex. Civ. App. 16, 53 S.W. 599; Schroeder v. Wisconsin Central R. Co., 117 Wis. 33, 93 N.W. 837; Staab v. Rocky Mt. Bell Tel. Co., 23 Idaho 314, 129 P. 1078; Denbeigh v. Oregon- Washington R. & N. Co., 23 Idaho 663, 132 P. 112; Tiffany, Death by Wrongful Act, sec. 189.)

Negative evidence from a person in position to hear a train whistle, but who testified that he did not hear it, constitutes some proof that there was no whistle. (Stotler v. Chicago R. Co., 200 Mo. 107, 98 S.W. 509; King v. St. Louis & S. F. R. Co. (Mo.), 127 S.W. 400.)

"Where one party offers testimony to sustain his burden of proof, the other party, although offering nothing to contradict it, is entitled to have the jury pass upon the whole case, a direction of a verdict against him being improper." ( Gannon v. La Clede Gas Light Co., 145 Mo. 502, 68 Am. St. 575, 46 S.W. 968, 47 S.W. 907, 43 L. R. A. 505.)

C. L. Heitman, for Respondent.

There is absolutely no evidence tending to prove negligence on the part of respondent. The negligence of respondent not being shown by any evidence, much less by a preponderance of the evidence, it follows that appellant cannot recover. ( Chicago, B. & Q. R. Co. v. Church, 49 Colo. 582, 114 P. 299; Cent. Dig., "Negligence," secs. 217-220; Dec. Dig., "Negligence," sec. 121.)

Even had respondent failed to comply with the provisions of sec. 2821, Rev. Codes, this statute does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the negligence of the plaintiff contributed to and was the proximate cause of the injury. (Wheeler v. Oregon R. R., 16 Idaho 375, 102 P. 347, citing Rumpel v. Oregon etc. Ry. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 725, and cases cited.)

This rule recognizes the right of a defendant charged with negligence to defend upon the ground of nonliability, by reason of contributory negligence on the part of the plaintiff. (Hopkins v. Utah etc. Ry. Co., 2 Idaho 300, 13 P. 343; Adams v. Mining Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Crawford v. Lumber Co., 12 Idaho 678, 87 P. 998, 10 Ann. Cas. 1.)

Had plaintiff looked or listened, he could both have seen and heard the train before he drove upon the crossing. ( Fleenor v. Oregon etc. R. Co., 16 Idaho 781, 102 P. 897; Colo. Ry. Co. v. Lauter, 21 Colo. App. 101, 121 P. 137; 41 Cent. Dig., "Railroads," secs. 1117-1123; Dec. Dig., "Railroads," sec. 346.)

A traveler on a public highway which crosses the railroad track upon approaching such crossing is bound to exercise care and caution by looking and listening for approaching trains, so as to avoid the danger of a collision. (Wabash etc. Ry. Co. v. Neikirk, 15 Ill.App. 172; Lake Shore etc. Ry. Co., v. Boyts (Ind. App.), 43 N.E. 667; Wichita etc. Ry. Co. v. Davis, 37 Kan. 743, 1 Am. St. 275, 16 P. 78; Lesan v. Maine Cent. Ry., 77 Me. 85; Maryland Cent: Ry. v. Neubeur, 62 Md. 391; Judson v. Railroad, 63 Minn. 248, 65 N.W. 447; New Orleans etc. Ry. Co. v. Mitchell, 52 Miss. 808; Kimes v. St. Louis etc. Ry. Co., 85 Mo. 611; Pennsylvania Co. v. Ratgeb, 32 Ohio St. 66; Pennsylvania etc. Ry. Co. v. Peters, 116 Pa. 206, 9 A. 317; Gulf etc. R. R. Co. v. Scott (Tex. Civ. App.), 27 S.W. 827; Hogan v. Tyler, 90 Va. 19, 17 S.E. 723.)

"A traveler upon the highway who fails to look out for approaching railroad trains is guilty of negligence, and cannot recover for injuries received by a collision with a passing train." (Railroad v. Houston, 95 U.S. 697, 21 L.Ed. 542; Wabash etc. R. Co. v. Hicks, 13 Ill.App. 407; Northern Cent. Ry. Co. v. State, 54 Md. 113; Leak v. Railroad, 90 Ala. 161, 24 Am. St. 775, 8 So. 245; Herlick v. Louisville etc. R. Co., 44 La. Ann. 280, 10 So. 628; Magner v. Truesdale, 53 Minn. 436, 55 N.W. 607; Taylor v. Missouri P. Ry. Co., 86 Mo. 457; Texas etc. Ry. Co. v. Brown, 2 Tex. Civ. App. 281, 21 S.W. 424; Rockford etc. R. Co. v. Byam, 80 Ill. 528.)

It was plaintiff's duty to stop, look and listen. (3 Elliott on Railroads, sec. 1095, p. 1648, and cases cited; Hamilton v. Delaware etc. R. Co., 50 N.J.L. 263, 13 A. 29; Omaha etc. Ry. Co. v. Talbot, 48 Neb. 627, 67 N.W. 599; Berry v. Pennsylvania R. Co., 48 N.J.L. 141, 4 A. 303.)

The track of a steam railroad is of itself a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains, and if the view of the track is obstructed he should take greater pains to listen. (Bilton v. S. P. Co., 148 Cal 443, 113 Am. St. 285, 83 P. 440; Colo. & Southern Ry. v. Thomas, 33 Colo. 517, 81 P. 801, 3 Ann. Cas. 700, 70 L. R. A. 681; Missouri K. & T. Ry. v. Jenkins, 74 Kan. 487, 87 P. 702; Kunz v. Ore. Ry....

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