Colorado & S. Ry. Co. v. Honaker
| Decision Date | 06 February 1933 |
| Docket Number | 12818. |
| Parties | COLORADO & S. RY. CO. v. HONAKER. |
| Court | Colorado Supreme Court |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 5 F.Supp. 397
In Department.
Error to District Court, Larimer County; James L. Cooper, Judge.
Action by Myrll L. Honaker against the Colorado & Southern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Lee, Shaw & Bryans, of Fort Collins, and J. L Rice, J. Q. Dier, and Andrew C. Scott, all of Denver, for plaintiff in error.
Stow & Stover and Herbert A. Alpert, all of Fort Collins, for defendant in error.
In a personal injury action against the Colorado & Southern Railway Company, Myrll Honaker obtained a judgment for $2,869. The railway company seeks a reversal of that judgment.
Mason street runs north and south in Fort Collins, a city whose population in 1930 was over 11,400. Laurel street runs east and west and crosses Mason street. South of Laurel street Mason street is 40 feet wide from curb to curb; north of Laurel street it is 68 feet wide from curb to curb. Laurel street is 60 feet wide from curb to curb. The track of the railway company is on Mason street. South of Laurel street the west rail is less than 15 feet from the west curb; north of Laurel street it is 40 feet from the west curb. About 20 feet west of the west rail and about the center of Laurel street, projected, is a cement warning signal post, on top of which is a sign, Fronting Laurel street, and about 40 feet south of the curb, is a building on the agricultural college grounds. The building is about 95 feet long, extending east and west, and reaches to within 20 feet of the west curb on Mason street. There are several trees in the parking on Laurel street opposite the college building and several others on Mason street opposite the east end of the college building. At the time of the accident the trees which were not in full leaf, were but a slight, if any, obstruction to the view of the railroad track to the south of Laurel street. Four hundred feet south of the center of Laurel street is College Depot. For the protection of the public, the city enacted an ordinance limiting the speed of trains within the city to 15 miles an hour.
The following statement of facts is based, as it should be, upon the evidence most favorable to Honaker: On May 13, 1930, at about five minutes of 6 o'clock in the afternoon, Honaker, a student at the agricultural college, left a house, referred to as 612 South Howes street, in his automobile. That street is parallel with, and one block west of, Mason street, and the house is two-thirds of a block north of Laurel street. Honaker was bound for his boarding house, between 5 and 6 blocks away. He had 20 minutes in which to get there in time for dinner, which was to be at quarter past 6 o'clock. He turned on Laurel street at a slow rate of speed because of the roughness of the road there. At the middle of the block between South Howes street and Mason street he was going 20 miles an hour. He was thoroughly familiar with the crossing and the surroundings. He had passed over the crossing probably every school day in his junior and sophomore years. He knew that the customary speed of the trains was 20 miles an hour, and that it was the custom for the train to reach that crossing at 5:30 or 5:40 p. m. It was customary for the train whistle to be blown and the bell to be rung as the train approached the crossing, and, when those signals were given, Honaker would close the throttle of his automobile about 100 feet from the crossing, and would come to a 'dead stop' between 20 and 30 feet from the crossing. On the occasion in question no warning signal was given. The evidence on this point was conflicting, and the verdict of the jury conclusively determines that conflict in favor of Honaker's contention. When about 55 or 60 feet from the railroad track, Honaker slowed down and listened, but there was no warning signal. The automobile was only a few feet to the south (the driver's right) of the center of Laurel street. At that moment he saw the train 'coming out past the corner of' the agricultural college building. The train then was about 80 feet south of the south side of Laurel street. There were two cars, the front one being a motorcar. The train was coming at a speed of 35 miles an hour. The engineer testified that the train was about 25 minutes late. Honaker was obliged to decide instantly what to do. Not being sure that he would be able to stop his car Before reaching the track, and knowing that he could not cross in front of the train, going, as it was, at such an unusual and excessive rate of speed, he concluded that the best thing to do was to turn and 'go with the train rather than take the chance of sliding into it.' He applied the brakes, skidded 5 or 10 feet, and then turned to the left to go north on Mason street parallel with the train. The space between the south curb on Mason street and the west rail of the track, as we have seen, was 40 feet, which is equal to the entire width of that street south of Laurel street. The turn could have been made successfully but for the presence of the warning signal post and the excitement under which Honaker labored at the time. The front part of the automobile, headed north, passed west of the post, but the rear wheels skidded to the east, bringing the rear of the car into contact with the post, causing the automobile to swing around toward the train. The automobile came to a stop close to the track. When Honaker saw the train 'just barely skimming past' the automobile, he started to get out, but 'the train hooked on to the car and yanked it back around,' and Honaker was thrown through the automobile door and under the rear car of the train. The wheels severed his right leg halfway between the knee and the foot. The street there had a hard, fine gravel surface. It was dry. Honaker's automobile was an open Ford touring car, with a top but no side curtains or wind wings. He had it overhauled and a new brake lining put on in April, 1930, and the brakes were in good condition on the day of the accident. He was an experienced driver, having driven automobiles for about five years. There was a conductor on the train, but he was not called as a witness.
The warning signal post was placed there under permit granted by lawful authority and no charge of negligence is based upon the erection or maintenance of that post.
Three questions are presented for consideration: (1) Was the railway company negligent? (2) If it was, was its negligence the proximate cause of Honaker's injuries? (3) Was Honaker contributorily negligent? Of these in their order.
The street on which the train ran and the intersecting street were within the limits of a thickly populated city. At their intersection college grounds abutted upon both streets. The college was in session at that time of the year. The fact that it was customary to ring the bell and blow the whistle as the train approached the intersection is a recognition by this railway company of the necessity of giving such warning. The circumstances justified the finding that the failure to give such warning on the occasion in question was negligence. The violation of the speed ordinance, of course, was negligence per se.
(1) Excessive Speed. It is said that, as the train did not run into Honaker, but that Honaker ran into the train, the result would have been the same whether the train was going 35 miles an hour or only 15; and, therefore, that the rate of speed had nothing whatever to do with the injuries received by Honaker. With this statement we do not agree. It is true that, if a man drives in front of a moving train, and it runs over him and cuts off a leg, the speed ordinarily is immaterial, for ordinarily the leg would be severed whether the train is going 35 or 15 or only 5 miles an hour. This is not such a case. It is true, also, that, if the driver of an automobile tries to beat a train to a crossing, is unsuccessful in the attempt, and crashes into the side of one of the cars with such force as to catapult him over the front of the automobile and against the side of one of the cars, thereby crushing his skull, the speed of the train, ordinarily, is unimportant, for the same injury could be sustained if the train were going only 15 miles an hour, or even if it were standing still.
Honaker's automobile, instead of crashing into the car at a high rate of speed, had practically come to a stop. When the side of the car 'hooked on' to the automobile, it 'yanked' the automobile around with such force as to throw Honaker under the train. It was for the jury to determine whether or not that result was due to the excessive speed of the train. We cannot say that, as a matter of law, it was not.
Again if the train had been going at the lawful speed, Honaker would have had time to cross the track Before the train reached the intersection, had he decided to do that instead of turning to the left to go north on Mason street. To this suggestion counsel make the objection that the margin of time was so narrow that a person of ordinary prudence would not attempt to cross in front of the train, and that, if Honaker had made the attempt and anything had gone wrong--if, for example, his automobile had ceased to function properly--and a collision had occurred, Honaker would have been guilty of contributory negligence barring a recovery by him. However, in this part of the opinion we are not concerned with the question whether or not there would have been contributory...
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