Grant v. Chi., M. & St. P. Ry. Co., 6000.

• Docket Nº: No. 6000.
• Citation: 78 Mont. 97
• Case Date: January 04, 1927
• Court: United States State Supreme Court of Montana

78 Mont. 97

GRANT
v.
CHICAGO, M. & ST. P. RY. CO. et al.

No. 6000.

Supreme Court of Montana.

Jan. 4, 1927.

Appeal from District Court, Fergus County; Edgar J. Baker, Judge.

Action by Walton Hood Grant against the Chicago, Milwaukee & St. Paul Railway Company and another. From a judgment of nonsuit, plaintiff appeals. Affirmed.

E. K. Cheadle and E. G. Worden, both of Lewistown, for appellant.

Murphy & Whitlock, of Missoula, for respondents.

TOOLE, J.

This action is for damages for personal injuries received by plaintiff in a railroad crossing collision. The pleadings admit the corporate entity of defendant company and its engagement in the business of owning and operating a railway system as a common carrier in the state of Montana and other states; that a portion of this system extended through Fergus county, Montana, and the existence of a public highway, crossing over the line of the railway between the station of Denton and Hoosac in that county; that the defendant company owned, maintained, and operated, in the carrying on of its business, engines, cars, and other equipment necessarily employed in the business of a common carrier; that on or about October 12, 1922, one of the trains of defendant company was being operated on its railroad in Fergus county in a northerly direction and approached the crossing; that an automobile in which the plaintiff was riding came into collision with one of the trains of the defendant company upon the crossing on or about October 12, 1922; and that the defendant Warner was employed by the defendant company as an engineer.

The cause of action is predicated upon the alleged and controverted known dangerous character of the crossing and the negligence of defendants in their approach thereto by running at an excessive speed and in failing to sound the whistle, ring the bell, or give other warning of the approach of the engine involved in the collision which resulted in general and special damages to the plaintiff. Contributory negligence on the part of plaintiff in permitting the automobile to approach the crossing at a high rate of speed and in failing to cause the speed to be slackened in approaching the crossing, and in failing to stop, look, and listen, the elements of daylight and lack of visual obstruction being injected, is put in issue by the answer and reply.

Upon the trial by a jury, following the production of plaintiff's evidence, the court upon motion of the defendants entered a judgment of nonsuit. Plaintiff appeals from the judgment.

The evidence in the case is that in the midafternoon of October 12, 1922, which was a bright, clear day with a strong wind blowing from the northwest, plaintiff was riding en route from Denton to Lewistown as a guest and passenger of one Ballinger, the owner and driver of a Dodge roadster, which was in good running order, with the brakes in good condition. The roads were dry. Plaintiff was sitting on the right-hand seat, which was the side nearest the approaching engine, and no side curtains were in place. The crossing in question is approached on the highway from the west by a gradual slope from a hill about a quarter of a mile distant, and the railway approaches the crossing from the south through a cut of varying depth and width. At a point 50 feet westerly from the center of the track at the crossing an occupant of an automobile could see the upper part of an engine on the track on the right, or south, at a distance of 198 feet from the center of the crossing; at a point on the highway 40 feet westerly from the center of the track at the crossing an engine on the track on the right could be seen by an occupant of an automobile, from the center of the boiler up, at a distance of 235 feet; at a point on the highway 30 feet westerly from the center of the track at the crossing an engine on the track on the right could be seen by an occupant of an automobile, from the center of the boiler up, a distance of 293 feet; while at a point on the highway 20 or 25 feet westerly from the center of the track at the crossing an occupant of an automobile could see an engine on the track at the right at a distance of more than 335 feet.

The crossing was a country crossing and not within the limits of any city or town, and no flagman or automatic bell was maintained at the same. Plaintiff and Ballinger testified that they estimated the speed of the approaching engine at 45 and 50, respectively, miles per hour, which would be from 66 to 73 feet per second. When a point on the highway 300 feet from the crossing was reached, the automobile was traveling at the estimated rate of 37 or 44 feet per second, whereupon its estimated speed was reduced to about 22 feet per second, and it was estimated that the automobile was traveling at a rate not in excess of this when it reached a point 40 feet from the track. By the time it had reached a point 20 feet from the track its estimated speed had been reduced to between 7 and 15 feet per second, at which point the brakes were applied, but the automobile was not stopped until the front wheels were over the first rail of the track. The impact of the resulting collision threw the automobile against a signpost 50 feet from the point of contact. From the above estimates it follows that the average speed of the automobile from the 300-foot point to the 40-foot point was from 29 1/2 to 33 feet per second, from the 40-foot point to the 30-foot point from 18 1/4 to 20 1/4 feet per second, from the 30-foot point to the 20-foot point from 10 3/4 to 16 3/4 feet per second, and from the 20-foot point to the first rail of the track from 3 1/2 to 7 1/2 feet per second; and the 20-foot point was reached from 5.7 to 2.7 seconds before the collision, the 25-foot point from 6.05 to 2.975 seconds before the collision, the 30-foot point from 6.4 to 3.25 seconds before the collision, and the 40-foot point from 7.1 to 3.8 seconds before the collision.

Upon the basis of the engine speed as estimated by plaintiff and Ballinger, at the 20-foot point the approaching engine would have been from 178 to 416 feet distant from the crossing and in view of the occupants of the approaching automobile; at the 25-foot point from 196 to 442 feet distant from the crossing and appearing in the unobstructed visual angle of the occupants of the approaching automobile upon the engine reaching a point 335 feet distant from the crossing; at the 30-foot point from 214 to 467 feet...