Hudson v. Union Pac. R. Co.

• Citation: 120 Utah 245,233 P.2d 357
• Decision Date: 19 June 1951
• Docket Number: No. 7449,7449
• Parties: HUDSON, v. UNION PAC. R. CO.
• Court: Supreme Court of Utah

Page 357

233 P.2d 357

120 Utah 245

HUDSON, v. UNION PAC. R. CO.

No. 7449.

Supreme Court of Utah.

June 19, 1951.

Edward W. Clyde, Allan E. Mecham and Woodrow D. White, all of Salt Lake City, for appellant.

Bryan P. Leverich, M. J. Bronson, A. U. Miner, Howard F. Coray and Dan A. Alsup, all of Salt Lake City, for respondent.

WOLFE, Chief Justice.

Mona C. Hudson sued the Union Pacific Railroad Company to recover damages for personal injuries suffered in a railroad crossing accident. She appeals from a directed verdict in favor of the defendant.

In the afternoon of May 1, 1948, Mrs. Hudson accompanied Mrs. Era Jones, the driver of the automobile, on a short pleasure ride outside Logandale, Nevada. The defendant's track runs in a general northerly direction and is practically straight for about one thousand feet north of the crossing here involved. The unimproved dirt road crossed the track at right angles and at a point 75 feet distant, it turned and paralleled it for 300 feet, then it turned away from the track and went down into a ravine. Mrs. Jones drove across the track and proceeded to the ravine for the purpose of reaching the main highway. The road was blocked, so they turned around and retraced their way to the crossing where the car was struck by defendant's freight train. A contour map prepared by a surveyor shows that the road is three to five feet lower than the track where they parallel each other and it is slightly upgrade, the last 75 feet where it approaches the crossing at a right angle. The train was estimated at traveling between 15 and 20 miles per hour, the car approximately 18 to 20 miles per hour. In order for the collision to have occurred the train must have been to the rear as the car proceeded along the 300 foot parallel stretch.

The complaint alleges that the defendant was negligent in failing to ring a bell or sound a whistle. There were no witnesses to the accident other than the train crew and the two women. The driver of the automobile, Mrs. Jones, did not appear at the trial. Plaintiff testified that she did not hear the bell or any other sound of the approaching train until she looked up and saw it just as the accident occurred. On cross-examination she reiterated, 'Absolutely there was no whistle of any kind.' She was sitting in the front seat on the right hand side and the train struck the car on that side. The windows in the car were down. She and Mrs. Jones were talking about hearing the 'click' of the automobile transmission when 20 miles per hour speed was reached. Plaintiff was in a position where she would likely have heard a ringing bell. In behalf of the railroad, the engineer testified that he sounded the regular crossing whistle--two longs, a short and a long--and turned on the automatic bell about two miles before the crossing. After the accident occurred, he ran to the automobile with the other crew members to aid the two women. Then he returned to the cab of the diesel engine to turn the bell off, which he had forgotten to do. It was an automatic bell operated by air pressure, controlled by a valve. He testified that he was so accustomed to hearing bells that in the excitement of the accident he did not notice it was still ringing until after he had talked to Mrs. Jones. The fireman testified that the whistle was blowing and the bell was ringing at the time of the collision. He testified that the engineer blew the whistle after he (the fireman) first saw the top of the car as it came up out of the ravine. He saw the engineer reach up and pull the whistle cord and turn on the valve which controlled the bell. He further testified that the bell was still ringing until after the engineer went back to the cab to turn it off. The brakeman testified that there was a whistle sounded and the bell was ringing. Three other crew members testified to the same effect. The conductor stated that the noise of the freight cars drowns out the sound of the bell in the caboose, but he heard it ringing after the train stopped. Plaintiff contends that this state of the evidence creates a conflict which must be resolved by the jury.

The issue here presented involves the relative probative value of so-called negative and positive testimony. The law in our jurisdiction concerning this problem has evolved from the following cases and language found therein. Russell v. Watkins, 49 Utah 598, 164 P. 867, 869. 'The weight of negative testimony [viz that the witnesses did not hear the defendant's automobile horn] ordinarily is for the jury to determine; but, when physical conditions and the attending circumstances are such as to render it highly improbable that they could hear, we think the rule should be and is otherwise.' A jury verdict for the plaintiff was reversed because testimony that the witnesses did not hear the horn sounded was not evidence of negligence that defendant did not honk his horn. In Jensen v. Oregon Short Line, 59 Utah 367, 204 P. 101, 104, the deceased's companion testified he heard no bell, but was paying attention to another noisy passing train. The crew of the train which struck the deceased testified their bell was ringing. The court stated: 'This is not a case in which the witness claims to have been listening for signals and failed to hear them. The witness in this case was not consciously listening at all. His attention was directed in another direction, and his mind was engrossed with other matters.' Judgment for the plaintiff was reversed. An important qualification to the rule was added by Clark v. Union Pacific Railroad Co., 70 Utah 29, 257 P. 1050, 1053. At the time of that crossing accident it was very foggy and two school girls particularly listened for the train whistle in order to learn just how late they were for school. Two men were driving a team toward the crossing and they were cautiously alert for the sound of the train because they were unable to see in the fog. The court held that this evidence was of probative value and created a jury question as to the failure to give a warning. The opinion states, '* * * it is not the fact of negative testimony, but the character of the negative testimony, which is regarded as not sufficient to support a verdict that signals were not given, or to raise a conflict with testimony that the bell was rung and whistle blown. It is clear that, where one witness testifies that the whistle was sounded and the bell rung, and another witness of equal opportunity to know the fact testifies that he was listening to see whether the whistle did or did not sound and the bell ring, and that the whistle did not sound nor the bell ring, positive testimony is met by positive testimony; and, if the witnesses are of equal credibility, the testimony of the one is entitled to as much weight as the other.' Thus the rule required that before a jury question was created concerning conflicting testimony that warning signals were given, 'it must be made to appear that they were paying some attention to what actually occurred and that they were in a position where they could and did observe what was done or what was not done.' Anderson v. Union Pacific Railroad Co., 76 Utah 324, 289 P. 146, 149. In Earle v. Salt Lake & Utah Railroad Co., 109 Utah 111, 165 P.2d 877, 878, the court briefly stated, 'As to whether the train sounded a whistle for the crossing there is a dispute in the testimony which we think should be determined by the jury.' Defendant now maintains that no jury issue of negligence in failing to sound a warning was made out, because it does not appear that Mrs. Hudson was affirmatively listening or paying attention to determine whether the train was going to whistle or not. Admittedly this was necessary under the Clark and Anderson cases, supra, in order to change the characterization of negative testimony that no warnings were heard to positive testimony to the effective that, 'I was listening for the whistle and bell but they were not given.' Such a distinction governing the relative probative value of testimony and concluding plaintiff's right to a jury trial is not sound. All that need appear is that the witness was so situated in relation to the train at the time it is claimed the warnings were given that said warnings would have awakened her attention to them. The circumstances bearing on her opportunity and capacity to hear, such as possible deafness, pronounced wind direction affecting sounds, the speed and noise of the train and of the car, topography of the surrounding country, absorption in conversation or with her own thoughts or devices and any other factors which would enable the fact finder to evaluate the probative force of her testimony should be considered. The convincing power of testimony that a sound was not heard varies according to the opportunity of the witness giving it to hear and observe, but a passenger in an automobile need not persistently keep his ear cocked for the sound of a train. In this case the plaintiff is necessarily confined to negative evidence in proving the fact that the whistle or bell was not sounded. If such evidence is unworthy of belief simply because it is negative, then a plaintiff in like circumstances must nearly always fail. The issue is fundamentally a question of the credibility of witnesses and considering the close proximity of the car to the train while they travelled parallel to each other, Mrs. Hudson was in a position where it is likely that she would have heard the whistle, or at least the bell, and as there is no evidence that her attention was so absorbed in other matters that she would not have heard, a jury question is presented.

The negligence of Mrs. Jones, the driver, is not imputable to the plaintiff, a passenger invitee or guest of the driver, Lockhead v. Jensen, 42 Utah 99, 129 P. 347; Atwood v. Utah Light & R. Co., 44 Utah 366, 140 P. 137; Martindale v. Oregon Short Line R. Co., 48 Utah 464, 160 P. 275. The plaintiff can only be...