Incret v. Chicago, M., St. P. & P. R. Co.

• Decision Date: 27 December 1938
• Docket Number: 7792.
• Parties: INCRET v. CHICAGO, M., ST. P. & P. R. CO.
• Court: Montana Supreme Court

86 P.2d 12

107 Mont. 394

INCRET v. CHICAGO, M., ST. P. & P. R. CO.

No. 7792.

Supreme Court of Montana

December 27, 1938

Rehearing Denied Jan. 18, 1939.

Appeal from District Court, Second Judicial District, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by William Inkret against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company to recover for injuries sustained when the automobile in which plaintiff was riding collided with the side of defendant's freight train. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instruction to dismiss.

ANGSTMAN J., dissenting.

R. F Gaines, of Butte, and Murphy & Whitlock and Edmund T. Fritz all of Missoula, for appellant.

W. E. Coyle, A. G. Shone, and H. L. Maury, all of Butte, for respondent.

MORRIS Justice.

December 31, 1936, Fred McGovern drove in a Ford V8 coupe to the home of the plaintiff, where the plaintiff joined him, and the two started to drive to the home of a third party. The route lay along South Montana Street, which appears to be the boundary line between the county and the city limits of the city of Butte. They approached the point where the defendant's railway line crosses South Montana Street from the north. At a point approximately 300 feet north of the railway line a stop railroad signal is located at the right side of the highway. Approximately 40 feet from the north rail of the railway line an arc light is located, suspended 20 feet in the air, hanging directly over the street. This light is of the same style and candle power as some five or six hundred lights that are in use throughout the city of Butte at street intersections. Crossing gates that can be lowered and raised are installed on either side of the railway line at the intersection of the railway line and Montana Street--one on each side of the street--and, as they are lowered from either side, they form a barrier to highway traffic. It had been the practice to keep a red light hung on the gates when lowered, to warn travelers on the highway of approaching trains. At the time of the accident the gates appear to have been frozen and were not in use. Just to the left of the street and opposite the north gates defendant's crossing watchman had his station in a small shack when approaching railway traffic did not require his presence in the center of the highway.

It appears from the testimony that in ample time to give warning of the approaching train at the time of the accident the watchman took his place in the center of the street and waved on the north side of the railway crossing--the side the car in which the plaintiff was riding approached the crossing--his red lantern backwards and forwards. McGovern and the plaintiff suddenly appeared on the highway about 9:15 in the evening and crashed into defendant's freight train approximately 2,000 feet in length, striking the train about the center. They approached the arc light, according to the testimony of the driver of the car, approximately 40 feet from the railway line, at a rate of speed of 30 to 35 miles per hour, but as they passed under the arc light their speed was reduced to approximately 20 miles per hour, and they were going at that rate of speed when they struck the train.

The plaintiff was rendered unconscious; three ribs were broken; he was cut and bruised about the face and over the body generally, and was painfully but not seriously injured. He was confined in the hospital for about 30 days in all. He was in the hospital from the time of the accident until January 8th, released on that date but returned later and stayed there for a time on account of an infection of a cut on the knee which was suffered at the time of the accident. He was of good physique and was able to go to work in three months' time.

The complaint alleges the crossing to be dangerous, and plaintiff predicates his right to recover upon the negligence of the railway company in permitting the gates that were usually operated at the crossing to become out of condition, and failure to take other means to warn highway traffic of the danger at the crossing. Failure to operate the gates clearly appears to be the chief ground on which the allegations of injury due to the negligence of defendant are founded. A map showing the physical conditions surrounding the crossing was introduced and received in evidence without objection and explained by the drafting engineer who was called as a witness.

A general demurrer to the complaint was overruled. The answer denies all the material allegations of the complaint, and, as an affirmative defense, alleges that plaintiff's injuries were due to the contributory negligence of the driver and the plaintiff. The matter was tried by the court sitting with a jury. At the beginning of the hearing the defendant objected to the introduction of any evidence on the ground that the complaint did not state a cause of action. The objection was overruled. When plaintiff rested, the defendant moved for a directed verdict, which was overruled. A motion for a new trial was likewise overruled. The matter is here on appeal from the judgment.

Twenty-two specifications of error are assigned. We are of the opinion that the merits of the controversy turn upon the question whether or not the driver of the car and the plaintiff were guilty of contributory negligence or not, and that the solution of that question will render unnecessary the consideration of the assignments of error in detail.

McGovern, as a witness for the plaintiff, testified that he was about 30 or 40 feet north of the crossing when he first saw the train. He was almost directly under the arc light, and before that he had looked and he thought he had a clear road. He "did not see any obstruction thereof." He testified there was no light and no danger signal of any kind that he saw; the gates were not working and he had no warning that there was a train on the highway crossing. He was familiar with the crossing and had been over it some ten times or more. When he approached the intersection of South Montana Street and Rowe road he knew that there was a crossing a little beyond, but had never driven over the crossing when a train was there. He was listening, but could not hear anything, so he imagined it was clear. His car was in good condition as to brakes and head lights, and he was driving around 30 miles per hour--"maybe a little more" when he left the intersection of Montana Street and Rowe road some 300 feet north of the crossing.

Later he stated that when he left the intersection he "was doing around between 30 and 35 miles per hour." He did not know how fast he was going when he struck the side of the train, "but it was around 20 miles." He could stop a car going 30 miles an hour in 30, 35 or 40 feet, and could stop one going 20 miles an hour in less distance. "But the road conditions at the crossing were such as to make it impossible to stop as quickly as 35 or 40 feet." Under the conditions he believed it would take 70 or 80 feet. He further testified: "If there was sufficient warning there I would have stopped and not been going that fast. Assuming that I was able to see the train at a distance of 70 feet from the crossing, my estimate is, under the conditions as they were then, I could have stopped in time to have avoided the collision. *** I expected to see a red light. *** I could not see the gates standing in their ordinary upright position until I had gotten under the arc light and my head lights hit the train. Prior to the time I had gotten under the arc light I could not see where the crossing gates were. If they had been down and there had been no red light on it I would have seen it. *** When I first noticed the train I applied my brakes. The wheels skidded and the car hit toward the street car tracks. *** While I was passing from underneath the street light up to the place where the train was, I saw the crossing watchman over there talking to people on the sidewalk. I glanced over toward him. The windshield was slightly frosted. I couldn't say how cold it was that night, but it was pretty cold. It was below zero."

The witness denied that he had said in the presence of Matt Korn and Father Hannah, at St. James' Hospital, that the reason he ran into the train was because his "windshield was frosted over." He said he never made that particular statement, but that his windshield was slightly frosted but that he could see. He further testified that he was looking for the red light and did not look to either side to see if a train were coming, or anything of that kind. "If the gates had been down with the red lights burning, I would not have speeded up my car as I did *** as I approached the crossing. My window was down three or four inches and I was listening and heard nothing. As I approached the crossing, I did not look to either one side or the other before *** I was proceeding on the right hand side of the street going down and there was nobody out and waving any light and there was no light out there."

The pertinent part of plaintiff's own testimony relative to whether the crossing was hazardous or not, his familiarity with the crossing and his exercise of due care, was as follows:

"You couldn't see the railroad track, and you couldn't see the train approaching in either direction until you got underneath the arc light. When we got underneath the arc light, I then looked to the left and saw that a train was coming; I looked to the right and saw that a train was coming. I looked before I got to the arc light too,--just after you get over the Rowe road there is a railroad track there, and looked and didn't see anything. I looked because I knew a track was there. If a train was there I would not have been able to see

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