Cox v. Los Angeles & S.L.R. Co.
| Decision Date | 04 April 1936 |
| Docket Number | 3126. |
| Citation | 56 P.2d 149,56 Nev. 472 |
| Parties | COX v. LOS ANGELES & S. L. R. CO. ET AL. [a1] |
| Court | Nevada Supreme Court |
Appeal from District Court, Clark County, Eighth District; Wm. E Orr, Judge.
Action by Elson H. Cox against the Los Angeles & Salt Lake Railroad Company and another. Judgment for plaintiff, and defendants appeal.
Reversed.
Leo A McNamee and Frank McNamee, Jr., both of Las Vegas, Brown & Belford, of Reno, and Malcolm Davis, of Los Angeles, Cal for appellant.
Chas. Lee Horsey, of Las Vegas, for respondent.
Plaintiff was injured when a loaded truck driven by him was struck by one of defendant company's freight trains on a crossing at Moapa, Clark county, on the 22d day of February, 1933. Claiming that his injuries were the result of defendants' negligence, plaintiff brought this action in the Eighth judicial district court, praying judgment, (a) for $25,200 as actual damages for loss of earning power due to permanent partial disability, (b) for $15,000 as actual damages for physical pain and distress and mental anguish, and (c) for $10,000 as punitive damages. Defendants denied that they were guilty of any negligence, and defended further upon the alleged ground that plaintiff's own negligence was the proximate cause of his injuries, or that if there was any negligence on the part of defendants, any recovery by plaintiff was barred by reason of his contributory negligence. After a trial by the court, sitting without a jury judgment was rendered in favor of plaintiff, awarding him $5,880 as actual damages for loss of earning power. Defendants have appealed from said judgment, and from an order denying a new trial.
Moapa is a town on the main line of defendant company's railroad between Las Vegas, Clark county, Nev., and Caliente, Lincoln county, Nev. It is not a large town, consisting, to judge from the photographs in evidence, of some twenty-five or thirty buildings. The direction of the railroad is such that for convenience we will say it runs north and south through Moapa. The passenger depot is on the west side of the tracks, and state highway No. 7A grade crossing, where the accident happened, is slightly more than 50 feet from the north end of the depot platform. Said highway crosses the railroad tracks at right angles, east and west. To the east of the depot are four railroad tracks. Commencing at the east, we shall designate these tracks, in accordance with the numbers used at the trial and in the briefs and arguments in this court, as 1, 2, 3, and 4. Tracks 1 and 2 are house tracks, track 3 a passing track, and track 4 the main line. The accident occurred on track 4, nearest the depot. Each one of these tracks is 4 feet 8 1/2 inches wide. From the west rail of track 1 to the east rail of track 2 is 6 feet. From the west rail of track 2 to the east rail of track 3 is 10 1/2 feet. From the west rail of track 3 to the east rail of track 4 is 12 feet 3 inches. The overhang of a railroad freight car is 2 1/2 feet, and that of a locomotive, 3 feet. The truck driven by plaintiff was about 20 feet long, and its front end was 6 feet from the place where plaintiff sat while driving. Going towards Las Vegas, and about a half mile south of the depot at Moapa, the railroad curves to the westward around some low hills. The engine and cars of a train coming into Moapa from the south cannot be seen from there until they emerge from behind said hills in rounding the curve. Going northwards out of Moapa the railroad makes a similar curve, to the left, around low-lying hills, and the engine and cars of a train coming from the north cannot be seen from Moapa until they emerge from behind these hills in rounding said curve. Track 3, though not a main line track, extends as far as the eye can see from the depot around both of said curves. Track 1 is the shortest of the four tracks, track 2 being next shortest. The two points where track 1 joins track 2 and the two points where track 2 joins track 3 are within the range of vision both ways from the depot, but tracks 1 and 2 both extend a considerable distance further to the south than to the north from the place where the highway crosses all of said tracks.
About 10 feet north of said crossing, on the east side of all said tracks, is a warehouse, the nearest corner of which is about 6 feet from the east rail of track 1. At the time of the accident, and for at least two and one-half days immediately prior thereto, there were two lines of freight cars standing on tracks 1 and 2--about eight or nine of such cars on each of said tracks. Most of them were box cars. The car nearest the highway on track 1 was about 10 feet from the road, and the car nearest the highway on track 2 about 15 feet from the road. There were no cars on track 3 and none on track 4, except those on the train which struck plaintiff's truck. To a person approaching the crossing from the east or northeast, the view to the south was obstructed to a large extent by various buildings and trees. The effect of defendants' allowing the cars to stand on tracks 1 and 2 was to further obstruct the view to the south to such an extent that one crossing the tracks from east to west could not have a view along the tracks to the south until arriving at a point 2 1/2 feet west of the west rail of track 2. Notwithstanding this added hazard, defendants did nothing whatever in the way of taking extra precautions to safeguard persons using said crossing. Among the many safeguards that might have been adopted by defendants was to decrease the speed of northbound trains, particularly those passing through Moapa without stopping. There was no automatic electric wigwag or bell at said crossing, nor any gates or watchman.
We quote the following from the trial court's findings of fact:
"On the 22d day of February, 1933, the plaintiff, Elson H. Cox, was driving a Mack auto truck, construction No. 11, and, pursuant to his employment by Nevada Contracting Company, was engaged in hauling a load of gravel from the certain gravel pits situated about three-quarters of a mile northeasterly from the Town of Moapa, Clark County, State of Nevada, to a place on the new State Highway No. 7A, then under construction, such place to which the plaintiff was hauling being about two and one-quarter miles from said gravel pits.
Plaintiff, traveling from said gravel pits, traveled upon a temporary gravel haul road until he reached the point where same joined or led into temporary State Highway No. 7A, about 550 feet from the place of intersection of said temporary State Highway No. 7A with the tracks of the Los Angeles & Salt Lake Railroad Company in the railroad yards at the said Town of Moapa, Clark County, Nevada.
Plaintiff, thereupon, passed from said gravel haul road onto said temporary State Highway No. 7A. Said gravel haul road, upon which plaintiff was traveling, passed over a hill near such place of joinder with said temporary State Highway No. 7A. When the plaintiff traveled over said hill, he was traveling about 10 or 12 miles per hour, but as he started down said hill he applied the brakes to his truck and gradually reduced the speed thereof until, when he reached the point where said temporary State Highway No. 7A merges with, or joins, the old Moapa-Glendale-St. Thomas High Road, about 75 feet from the railroad tracks, he was traveling about 3 miles per hour. The plaintiff continued traveling about 3 miles per hour until he was about 20 feet east of the most easterly of the railroad tracks of the defendant corporation, at which point he shifted gears.
The old Moapa-Glendale-St. Thomas High Road is an old road which has been used generally by the traveling public for many years, and from such place of joinder with said temporary State Highway No. 7A, such two roads continued on together to their place of intersection with the railroad tracks. The view of the railroad tracks to the south of Moapa, to one traveling as plaintiff was traveling, from the top of said hill, in a general westerly, or slightly southwesterly direction, toward said railroad tracks, was very much obscured by buildings and trees along, near and east of the railroad right-of-way, and by the topography of the country. From the top of said hill, it was plaintiff's experience, according to the evidence, that he could see a train, when same rounded the curve of the railroad, about one-half mile from Moapa, and emerged from behind the hills there situated, but as he descended from said hill, and traveled toward the railroad tracks, it became increasingly difficult to see the railroad, as his line of vision became lower than the height of the obstructions.
On the trip mentioned, on February 22, 1933, the plaintiff, when at the top of the hill, looked and listened for a train, and continued to do so from time to time until he reached the railroad tracks. * * *
Upon approaching the first, or most easterly track, the plaintiff looked toward the south and listened for a train, but did not see or hear any. Plaintiff's view toward the south was then very much obstructed by the intervening structures and trees, and by the freight cars upon said tracks, Nos. 1 and 2, that had been left so near the highway.
That thus leaving said cars so parked upon said tracks Nos. 1 and 2 was unnecessary and not required by the exigencies of the railroad operations of the defendant corporation, there then being ample track space within the yard limits of said defendant corporation for the leaving of said cars elsewhere; furthermore, said cars were thus left upon said tracks for an unnecessary and unreasonable length of time not required by the exigencies of the business of the said defendant corporation.
Plaintiff being required by his employment to proceed...
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