Denver & R. G. W. R. Co. v. Lipscomb

• Decision Date: 22 January 1968
• Docket Number: No. 21821,21821
• Citation: 437 P.2d 554
• Parties: The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, Plaintiff in Error, v. Elizabeth M. LIPSCOMB, Defendant in Error.
• Court: Colorado Supreme Court

Page 554

437 P.2d 554

164 Colo. 506

The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, Plaintiff in Error, v. Elizabeth M. LIPSCOMB, Defendant in Error.

No. 21821.

Supreme Court of Colorado, In Department.

Jan. 22, 1968.

Rehearing Denied March 11, 1968.

T. A. White, G. G. Walker, John S. Walker, Denver, for plaintiff in error.

Kripke, Hoffman & Friedman, Denver, for defendant in error.

RICHARD E. CONOUR ^*, District Judge.

Defendant in error, plaintiff in the trial court, brought this action against plaintiff in error, defendant below, to recover damages for personal injuries suffered by her as a result of a collision between her automobile and a locomotive operated by the defendant. The accident took place at a railroad crossing in Jefferson County. Plaintiff had judgment in the trial court, and defendant brings the case here to review the judgment entered against it on the verdict of a jury.

The collision in question occurred at about 5:20 P.M. on July 27, 1961, at a point where the main line of defendant railroad crosses 80th Avenue. The highway was a blacktop county road, not within the limits of any municipality. At the point of the collision, the road was 24 feet wide, and runs in a generally southeasterly and northwesterly direction. The single railroad track crosses the road at a slight angle at about the middle of a rather gentle S-curve. Mrs. Lipscomb resided in Boulder, and at the time of the collision was returning to her home from work, travelling alone in her car. The windows of the vehicle were closed, and the car radio was playing. There were no industrial or other noises in the area to interfere with her hearing the bell and whistle of the diesel locomotive, which were sounded commencing at a point at least a thousand feet westerly from the crossing and continued until, or just immediately before, the collision. The immediate area seems to have been a peaceful, quiet, rural neighborhood.

The plaintiff was proceeding northwesterly on the road, which slopes downward toward the track curving to the left, and then, a short distance before reaching the tracks, curves to the right. The track crosses the road about in the middle of this right curve. The crossing is clearly visible up the hill for a distance of approximately 600 or 700 feet, and the cross buck railroad crossing signs about 30 or 40 feet from the track on each side of it are also visible from this distance. The road to plaintiff's left was not obstructed by anything. To her right the track was constructed on the side of the hill plaintiff was descending and was obstructed by the hill and some trees and weeds so that the track itself could not be seen to the right or northwesterly of the crossing, until plaintiff approached within approximately 100 feet of the track. However, the embankment on the northwesterly side of the track did not conceal the two connected locomotives, which were 14 1/2 feet high and 110 feet long, the upper two or three feet of which could be seen above the weeds for some distance to the west of the crossing. From the cross buck sign on the easterly side of the crossing, the track to the northwest can be seen for several hundred feet to a point where it curves to the left and disappears behind a clump of trees. At this point the locomotives were in plain sight, had plaintiff chosen to look.

At the time of the collision the locomotive, which was returning to Denver after helping a westbound train as far as the Moffat Tunnel, was running at a speed of about 46 to 50 miles per hour. The evidence is uncontradicted that the air whistle was blown and continued to be blown for more than 1,000 feet before the locomotive reached the crossing. The bell was also ringing, and two powerful electric headlights on the locomotive were lighted.

Photographic evidence disclosed that Mrs. Lipscomb ran into the front step on the left side of the locomotive with considerable force. Her car was then spun around and deposited on the easterly shoulder of the road. She suffered serious injuries as a result of the collision. The road surface contained no skid marks evidencing any effort to stop the car, and plaintiff testified that she did not remember seeing the railroad crossing signs or the tracks. However, she also testified that she knew that the crossing was there. The uncontradicted evidence was that the whistle on the engine could be heard for approximately a mile.

While the witnesses were not in agreement whether the weather was clear or overcast, all agreed that the collision occurred in broad daylight. Likewise, the witnesses were uncertain whether the road was dry or damp. At the top of the hill was a sign warning motorists that they were approaching a hill, and closer to the track was a 'curve' sign. Mrs. Lipscomb testified that she did not remember seeing these signs, the track, the cross buck crossing signs, or the locomotives. Her speed at the time of the collision is not shown by the evidence, but the uncontradicted evidence shows that she made no effort to slow for the crossing. Her own testimony indicates that she was driving along the road oblivious of her surroundings.

In the light of this evidence, defendant moved for a directed verdict at the close of plaintiff's case, which motion was overruled. Defendant then renewed the motion at the close of its own case, which renewed motion was also overruled. The case was then submitted to the jury and a substantial verdict was returned for the plaintiff. Judgment was entered on the verdict and in apt time defendant moved for judgment notwithstanding the verdict and for a new trial, both of which motions were overruled.

Defendant assigns as error only two propositions, viz, (1) that the evidence failed to establish negligence on the part of the defendant, and (2) that the evidence established that plaintiff was guilty of contributory negligence as a matter of law. We will address ourselves to the second proposition since resolution of that issue renders unnecessary any consideration of the first. Even if we assume that defendant was negligent, which we do not decide, the conduct of the plaintiff makes her guilty of contributory negligence as a matter of law. It is apparent that she drove down the hill and into the side of the locomotive totally oblivious of the presence of the locomotive coming down the track with its whistle blowing, its bell ringing and its headlamps lighted, approaching a railroad crossing she knew was there. She did not slacken speed or make any effort to slow down or stop. She did not hear the whistle and bell, perhaps because sounds emanating from her car radio interfered. She offers no reason for not hearing that which she should, in the exercise of ordinary care, have heard.

No witness testified that the engine bell and whistle were not sounded. No witness testified that they did not hear the bell and whistle. However, Mrs. Lipscomb testified that she did not remember hearing the bell and whistle. This is insufficient to create an issue of fact to be resolved by the jury. As a general proposition, the weight to be given negative evidence depends on the opportunities of the witness to observe or hear, and in some situations, such evidence creates a jury issue. Lee v. Missouri Pacific Railroad Co., 152...