Fleenor v. Oregon Short Line Railroad Co.

Decision Date02 July 1909
Citation102 P. 897,16 Idaho 781
PartiesADDIE FLEENOR, Admx. of the Estate of HENRY FLEENOR, Deceased, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, Appellant
CourtIdaho Supreme Court


1. Where the plaintiff in an action for damages against a railroad company alleges several separate and independent acts of negligence as all concurring in the accident and consequent damages, and the acts charged are of such a nature that the accident might have occurred and the injury resulted from any one of such acts independently of any or all of the others, it will be sufficient to entitle the plaintiff to recover if he prove any act or acts alleged from which the jury may reasonably believe the accident occurred and the injury resulted.

2. As a general rule, the evidence of one who testifies to a negative is not entitled to the same weight as that of one who testifies to a positive. This general rule, however, is subject to the exception that where the evidence of an affirmative and positive issue necessarily consists in proof that a thing did not exist or an act did not take place, and the witness was placed under such circumstances and was in such position that he could as readily see and would as likely have seen or heard as the witnesses who testified that the act occurred or the thing did exist, then the testimony of such witness partakes of the nature of positive evidence and becomes proof of a positive issue.

3. Where witnesses testify positively that a bell was rung and a whistle sounded on a locomotive engine and that the engine was at the same time displaying a headlight, and other witnesses testify that they did not see a headlight and did not hear a bell or whistle, and it appears from the evidence that the latter witnesses were looking and listening for the train and were in a position near the track where they could see and hear equally as well as the other witnesses, the evidence of those testifying to the negative is entitled to go to the jury and be considered by them the same as that of the witnesses testifying to the positive.

4. Where the employees of a railroad company are running a train over a public crossing at such a high and dangerous rate of speed as to become within itself negligent management and operation of the train and engine, and an accident results as a consequence thereof, or while such train is being operated at such high and dangerous rate of speed, it is proper for the evidence of such fact to be submitted to the jury, and for the jury to consider the same in determining whether or not the company was guilty of negligence in the commission of the resulting injury.

5. The fact that a railway train is run at a high and dangerous rate of speed at a street crossing is no excuse or justification for a person subjecting himself to the danger and hazard of being run over by attempting to cross the track in front of such train. The same duty to observe diligence and care at public crossings for the prevention of injury rests equally and alike on both the railroad company and pedestrians and other travelers crossing a railroad track, subject, however to that other duty of pedestrians and other travelers crossing a railroad track to look and listen for on-coming trains and to clear the track that they may pass without injury being inflicted.

6. The duty of a railroad company to ring a bell or blow a whistle in approaching a crossing is imposed by positive statute of this state, and a failure to do so is negligence per se while the duty to maintain gates and station a flagman at a crossing is not enjoined by statute; still, under certain conditions and circumstances a failure to do so would constitute negligence at common law, for the consequences of which the company would be liable. Under all such circumstances the question of negligence in failing to maintain gates or keep a flagman at a crossing is a question of fact to be determined by the jury.

7. A prima facie presumption arises in the absence of evidence to the contrary that one who is killed while attempting to cross a railroad track at a public crossing stopped, looked and listened before going upon the track.

8. Where the evidence on material facts is conflicting, or where on undisputed facts reasonable and fair-minded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence is one of fact to be submitted to the jury. Where upon all the facts and circumstances there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury.

9. Evidence in this case examined and held sufficient to constitute a substantial conflict, and properly submitted to the jury.

10. Instructions in this case examined and held to correctly state the law and that there was no error in refusing the requests of the defendant.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed. L. Bryan, Judge.

Action by the plaintiff for damages caused by defendant company running over and killing plaintiff's intestate husband. Judgment for the plaintiff and defendant appealed. Affirmed.

Judgment affirmed with costs in favor of respondent.

P. L Williams, and D. Worth Clark, for Appellant.

Failure to sound a bell or whistle, failure to have a headlight on the engine, and failure to have a watchman at the crossing are alleged as concurring acts of negligence; in such case the rule is that plaintiff cannot recover on proof of either act, but must prove the concurring acts. (Wormsdorf v. Detroit City R. Co., 75 Mich. 472, 13 Am. St. 453, 42 N.W. 1000; Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N.E. 714.) Where specific acts of negligence are charged, the evidence must establish the specific negligence necessary to constitute the cause of action alleged and not merely some other cause of action. (Haner v. Northern P. R., 7 Idaho 305, 62 P. 1028; Miller v. Chicago etc. R., 76 Iowa 318, 41 N.W. 28; St. Louis etc. R. Co. v. Moss, 37 Tex. Civ. App. 461, 84 S.W. 281; Arcade File Works v. Juteau, 15 Ind.App. 460, 40 N.E. 818, 44 N.E. 326; Lynch v. Great Northern Ry. Co. (Mont.), 100 P. 616; Legge v. New York etc. R. Co., 197 Mass. 88, 83 N.E. 367; Snowball v. Seaboard Air Line, 130 Ga. 83, 60 S.E. 189.)

The rule is well settled that if the evidence fails to establish the theory of the complaint there can be no recovery thereunder. (Harris v. Hannibal etc. R., 37 Mo. 307; Waldhier v. Hannibal etc. R., 71 Mo. 514; Johnson v. Galveston etc. R., 27 Tex. Civ. App. 616, 66 S.W. 906; Moss v. North Carolina R. Co., 122 N.C. 889, 29 S.E. 410; Parrill v. Cleveland etc. R. Co., 23 Ind.App. 638, 55 N.E. 1026.) It is not alleged in plaintiff's complaint that the rate of speed was the cause of the accident and even if such were alleged, it is only alleged in reference to the F street crossing. Affirmative testimony that the warning was given must be accepted as proof of that fact, notwithstanding an equal or greater number of witnesses failed to notice it, from whatever cause. There is in such case no conflict of evidence as to the matter in question. The observation of the fact by some is entirely consistent with the failure of others to observe it, or their forgetfulness of its occurrence. (Citing authorities given in opinion.)

In this case there was no statute or ordinance limiting the rate of speed of railroad trains within the limits of the city of Nampa. The rule is well settled that in the absence of any statute or ordinance upon the subject the rate of speed is not negligence per se. (Young v. Hannibal etc. R. Co., 79 Mo. 336; Powell v. Mo. P. R., 76 Mo. 80; 8 Am. & Eng. R. Cas. 467.) Negligence cannot be inferred from speed alone where there is no ordinance or statute limiting the rate of speed. (Warner v. New York etc. R. R. Co., 44 N.Y. 465; Dyson v. New York & N.E. R. Co., 57 Conn. 9, 14 Am. St. 82, 17 A. 137.) Plaintiff did not attempt to prove that the rate of speed of this train was, under the circumstances, dangerous.

One approaching a street crossing is bound to use his senses, to listen and to look, before attempting to cross the railroad track in order to avoid any possible accident from an approaching train; if he omits to use his senses and walks thoughtlessly upon the track, he is guilty of culpable negligence; and if he receives any injury, he so far contributes to it as to deprive him of any right to complain. (Chicago R. I. & P. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Romeo v. Boston & Maine R. R., 87 Me 540, 33 A. 24; Schlimgen v. Chicago, M. & St. P. R. Co., 90 Wis. 186, 62 N.W. 1045.) The courts hold that if the duty of looking and listening is omitted the court is bound to instruct, as a matter of law, that a verdict be returned in favor of defendant. (3 Elliott on Railroads, 2d ed., sec. 1166; Herbert v. Southern P. Co., 121 Cal. 227, 53 P. 651; Rogers v. Rio Grande W. R. Co., 32 Utah 367, 125 Am. St. 876, 90 P. 1075; State v. Maine Cent. R. Co., 76 Me. 357, 49 Am. Rep. 622; North Pennsylvania R. R. Co. v. Heileman, 49 Pa. 60, 88 Am. Dec. 482; Pennsylvania R. R. v. Beale, 73 Pa. 504, 13 Am. Rep. 753; Cleveland etc. R. R. v. Crawford, 24 Ohio St. 631, 15 Am. Rep. 633; Dascomb v. Buffalo etc. R. R., 27 Barb. 221; Wilcox v. Rome etc. R. R., 39 N.Y. 358, 100 Am. Dec. 440; Railroad Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Gothard v. Alabama etc. Ry. Co., ...

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