Hobbs v. Union Pacific Railroad Co.

• Decision Date: 10 December 1940
• Docket Number: 6813
• Citation: 108 P.2d 841,62 Idaho 58
• Parties: WILLIAM HENRY HOBBS and MARY LOUISE HOBBS, Respondents, v. UNION PACIFIC RAILROAD COMPANY and G. A. SHERWOOD, Appellants
• Court: Idaho Supreme Court

108 P.2d 841

62 Idaho 58

WILLIAM HENRY HOBBS and MARY LOUISE HOBBS, Respondents, v. UNION PACIFIC RAILROAD COMPANY and G. A. SHERWOOD, Appellants

No. 6813

Supreme Court of Idaho

December 10, 1940

Rehearing denied January 13, 1941.

NONSUIT-DIRECTED VERDICT-JUDGMENT NOTWITHSTANDING VERDICT-EVIDENCE-CONFLICT IN-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-TESTIMONY OF EXPERTS-QUALIFICATIONS-DISCRETION OF JUDGE.

1. A party moving for a nonsuit, for a directed verdict, or for judgment notwithstanding verdict, admits truth of his adversary's evidence, and his adversary is entitled to the benefit of every inference favorable to him which may be drawn, legitimately, from any evidence before the court at the time the motion is made.

2. Failure to conform to the statute requiring bell to be rung or whistle to be sounded as train approaches crossing is "negligence per se". (I. C. A., sec. 60-312.)

3. In action for injuries to and death of occupants of automobile in crossing collision with train, conflicting testimony of witnesses who were in position to hear signals of approaching train held to make jury question on issue of negligent failure to give signals. (I. C. A., sec. 60-412.)

4. On motion for nonsuit, or for directed verdict, evidence should be construed most favorably to plaintiff, and motion denied where different inferences may be drawn, reasonably, from the evidence, whether disputed or undisputed.

5. In action for injuries to and death of occupants of automobile in crossing collision with train, evidence held to make jury question on issues of railroad's violation of ordinance regulating speed of trains, and of contributory negligence in permitting son to drive, failing to stop automobile before crossing, or to look and listen, and in proceeding toward main line past box cars that obstructed view.

6. Contributory negligence is a question for jury, and never one of law, unless facts alleged in complaint or proved are reasonably susceptible of no other interpretation than that the conduct of the injured party caused, or contributed to his injury, and that, because of his negligence, he did not act as a reasonably prudent person would have done under like circumstances.

7. Experience of witness as a railroad fireman was sufficient to enable him to form an opinion which would probably be of value to jury concerning distance in which train should have been stopped by the application of emergency brakes in good working order, by a competent engineer.

8. Whether or not a witness is qualified to testify as an expert is largely in the discretion of the trial judge.

9. In order to form opinion concerning train's speed at time of collision with automobile, former railroad fireman should have other facts than distance traveled after collision including evidence on whether brakes were in good working order, when they were applied, whether engineer did everything in his power to avoid collision, and whether train remained where it first stopped until arrival of witness.

10. Objection to expert testimony on speed of train derived from distance that train traveled after crossing collision, that "no proper foundation has been laid", was not sufficiently specific, and overruling of such objection was not reversible error.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A party moving for a nonsuit, for a directed verdict or for judgment notwithstanding verdict, admits the truth of his adversary's evidence, and his adversary is entitled to the benefit of every inference favorable to him which may be drawn, legitimately, from any evidence before the court at the time the motion is made.

II. Failure to conform to a statute, requiring a locomotive bell to be rung or whistle to be sounded, as a train approaches a street, road or highway crossing, is negligence per se.

III. Testimony of witnesses who were in position to hear signals of an approaching train, had they been given, that they did not hear them, opposed to that of witnesses who testified they heard them, presents a conflict in evidence and a question for the jury.

IV. On motion for nonsuit, or for directed verdict, evidence should be construed most favorably to plaintiff, and motion denied where different inferences may be drawn, reasonably, from the evidence, whether disputed or undisputed.

V. The question of contributory negligence is for the jury, and never one of law, unless the facts alleged in the complaint or proved, are reasonably susceptible of no other interpretation than that the conduct of the injured party caused, or contributed to, his injury, and, because of his negligence, he did not act as a reasonably prudent person would have done under like circumstances.

VI. Whether or not a witness is qualified to testify as an expert is largely in the discretion of the trial judge.

VII. It is error to admit in evidence, over proper objection, the opinion of an expert as to the speed of a train at the time of a collision, based alone on the distance it had traveled after the collision.

VIII. Objection to a question as to the opinion of an expert, that "no proper foundation has been laid", is not sufficiently specific, and an order overruling it does not constitute reversible error.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Action by William Henry Hobbs and Mary Louise Hobbs, husband and wife, against Union Pacific Railroad Company and G. A. Sherwood, for damages for the death of their son, and for personal injuries to themselves. Judgment for plaintiffs and order overruling motion for judgment notwithstanding verdict, or for a new trial. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Geo. H. Smith, H. B. Thompson and L. H. Anderson, for Appellants.

The railroad company has the right to assume that the traveling public will look for passing trains, and having looked and listened, they will discover the oncoming train and clear the track. (Whiffin v. Union Pac. R. R. Co., 60 Idaho 141, 89 P.2d 540; Burrow v. Idaho & W. N. R. Co., 24 Idaho 652, 135 P. 838; McIntire v. Oregon S. L. R. Co., 56 Idaho 392, 55 P.2d 148.)

Where one approaching a railroad crossing is familiar with the situation, he must use greater care as the danger is greater; he must as he approaches, look from a place where he can see, and listen from a place where he can hear, this is an imperative duty so long as there is any need of its exercise. (Whiffin v. Union Pac. R. R. Co., supra; Rowe v. Northern Pac. R. Co., 52 Idaho 649, 17 P.2d 352; Cathcart v. Oregon W. R. & N. Co., 86 Ore. 250, 168 P. 308, 310; Nucci v. Colorado & S. R. Co., 63 Colo. 582, 169 P. 273; Beckwith v. Spokane-International Ry. Co., 120 Wash. 91, 206 P. 921; 22 R. C. L. 1030.)

Testimony of an expert is not evidence of a fact in dispute, and raises no conflict in the evidence. (Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83; Nistad v. Winton Lumber Co., 61 Idaho 1, 99 P.2d 52.)

Positive expert testimony will prevail over negative expert testimony. (Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A. L. R. 1399; Soran v. McKelvey, 57 Idaho 483, 67 P.2d 906, 911.)

E. H. Hillman, for Respondents.

It is negligence for a railway company to store cars in such a manner as to increase the hazard at a crossing when the cars may be stored at a different place without inconvenience to the company. (Galveston H. & S. A. Ry. Co. v. Michalke, 90 Tex. 276, 38 S.W. 31.)

The plaintiff is only required to establish one of the alleged negligent acts which standing alone as a separate and distinct act of negligence might result in the injury. (Fleenor v. Oregon S. L. R. Co., 16 Idaho 781, 102 P. 897, 899.)

A railroad company is bound to exercise, at extra-hazardous crossings, care commensurate with the danger to travelers and a speed of 20 miles an hour may be excessive and negligent. (Peart v. Orleans-Kenner Tractor Co., 11 La. App. 11, 123 So. 822; 22 R. C. L. 990; 36 A. L. R. 327; Davis v. Boggs, 22 Ariz. 497, 199 P. 116; Graves v. Northern Pacific Ry. Co., 30 Idaho 542, 166 P. 571, 573.)

The instinct of self-preservation presumes that one killed at a crossing exercised due care and is free from contributory negligence. (Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Graves v. Northern P. R. Co., supra; Fleenor v. Oregon S. L. R. Co., supra.)

MORGAN, J. Ailshie, C. J., and Holden, J., concur. Budge and Givens, JJ., dissent.

OPINION

MORGAN, J.

Shortly before 3 o'clock in the afternoon of November 12, 1938 respondents, who live on their farm four miles east of St. Anthony, together with their neighbor, Mr. Jacobson, and their son, Merlin, twenty-two years old, drove to St. Anthony in their automobile to which was attached a four-wheeled trailer loaded with wheat. The wheat was being taken to St. Anthony to be sold. After reaching St. Anthony they started north along a street which crosses the tracks of appellant Union Pacific Railroad Company. In attempting to cross the tracks the automobile collided with the motor car of a two-car train belonging to the railroad company. The motor car was operated by appellant Sherwood, as engineer. The collision resulted in the death of Merlin Hobbs and in personal injuries to respondents. This action was commenced to recover damages for the death of respondents' son (who was not married and who lived with them and helped them on their farm), and for personal injuries to themselves. Three causes of action were stated in the complaint: The first for the death of the son; the second for injuries sustained by the husband, and the third for injuries sustained by the wife. Trial resulted in a verdict and judgment in favor of respondents on all causes...