Gunby v. Colorado & S.R. Co.

• Decision Date: 06 April 1925
• Docket Number: 10946.,10945
• Citation: 235 P. 566,77 Colo. 225
• Parties: GUNBY v. COLORADO & S. R. CO. (two cases).
• Court: Colorado Supreme Court

235 P. 566

77 Colo. 225

GUNBY v. COLORADO & S. R. CO. (two cases).

Nos. 10945, 10946.

Supreme Court of Colorado

April 6, 1925

Rehearing Denied May 4, 1925.

Department 1.

Error to District Court, Pueblo County; James A. Park, Judge.

Actions by Hazel Sharpnack Gunby against the Colorado & Southern Railroad Company. Judgments for defendant, and plaintiff brings error.

Affirmed.

John H. Voorhees and M. J. Galligan, both of Pueblo, for plaintiff in error.

J. Q Dier, J. L. Rice, and E. B. Evans, all of Denver, and J. W Preston, of Pueblo, for defendant in error.

BURKE J.

Plaintiff in error brought these actions against defendant in error to recover damages for injuries sustained by herself, and for the death of her mother, due to a collision of their automobile and defendant's train. To review judgments against her, entered on directed verdicts at the close of her evidence, she brings error.

The collision in question occurred about 12:17 p. m. March 19 1921, a short distance east of the city of Pueblo, at the intersection of a paved state highway, over which plaintiff was traveling east toward Fowler, and defendant's railway, over which its train approached plaintiff from the right. Plaintiff and her mother were in a closed automobile with the left-hand front window open, and were traveling at approximately 20 miles per hour. A strong wind was blowing from the north or northwest. The train approached the intersection at approximately 30 miles per hour, possibly a little more. On a telegraph pole there defendant maintained an electric gong whose ringing was presumed to announce the approach of its trains. No watchman was stationed at the crossing, and no other signal device was installed. There is positive evidence that the bell was ringing, that the engine whistle blew, and that the electric gong was sounding its warning; offset by plaintiff's negative evidence that she did not hear any of these. As the directed verdicts were entered on the theory of defendant's negligence, we will assume the failure of these signals, also that the speed of the train was, under the circumstances, excessive. There was at the time no condition of highway or automobile requiring plaintiff's particular attention. She was at the wheel, was an experienced driver, had often passed over this particular road, and knew all the conditions of the crossing, save the fact, if it were such, that the gong was inefficient. She testified that she looked to her right and listened as she approached the intersection; the last time she did so being at a point between 85 and 100 feet from the crossing. On the right of the highway was a bluff from behind which the train emerged. At 125 feet from the crossing plaintiff could have seen the train 258 feet away; at 100 feet she could have seen it 400 feet away; and at 75 feet she could have seen it at least 700 feet away. She testified that she never saw it at all, and first knew of the collision when she regained consciousness that afternoon in the hospital. As there is no evidence indicating a speed on the part of the train which would have covered the visible distance in so short a time, and as such a speed was, under the evidence, entirely beyond the bounds of reason, it is perfectly apparent either that plaintiff did not look, or looked so carelessly that she took no note of an obvious danger.

'Although it is negligence for a traveler not to look and listen for appoaching trains before attempting to cross a railway track, the law does not undertake to determine whether he shall do so at any particular place or given distance from the crossing. It is only required that he shall look and listen at the time and place necessary in the exercise of ordinary care.' Hecker v. Oregon Ry. Co., 40 Or. 6, 66 P. 270.

'The trial court expressly rejected the statement, that he looked but could not see, as incredible and under the...