Ineas v. Union Pac. R. Co.

• Decision Date: 12 March 1952
• Docket Number: No. 7757,7757
• Citation: 241 P.2d 1178,72 Idaho 390
• Parties: INEAS et al. v. UNION PAC. R. CO. et al.
• Court: Idaho Supreme Court

Page 1178

241 P.2d 1178

72 Idaho 390

INEAS et al. v. UNION PAC. R. CO. et al.

No. 7757.

Supreme Court of Idaho.

March 12, 1952.

Ross B. Haddock, Shoshone, Parry, Keenan, Robertson & Daly, Twin Falls, Robert E. Smylie, Atty. Gen., and Glenn A. Coughlan, Asst. Atty. Gen., for appellants.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson, and E. H. Casterlin, Pocatello, for respondents.

GIVENS, Chief Justice.

In the Village of Shoshone, Greenwood Street, which is also U. S. Highway No. 93, extends northerly between 27~ and 28~ east of north and southerly at the same divergence. North Rail Street intersects Greenwood Street at right angles and thus extends westerly north 27~ or 28~ of west and similarly, east.

Respondent Company's six tracks lie between and parallel to North and South Rail Streets. The southernmost is a passing track, the center of which is 72 feet north of the center of the intersection of South Rail and Greenwood Streets. The center of the next track, which is the eastbound main line track, is 23 feet further north, thence to the center of the third or westbound main line track, is 22 1/2 feet. Apparently from the center of the westbound main line track to the next line north, a passing track, is 15 feet. The two northernmost tracks, the first the beginning of a switching track, apparently are approximately 30 and 42 1/2 feet north, respectively, of the fourth or passing track.

The shops of the State Highway Department are on South Rail Street approximately four blocks west of the intersection of South Rail and Greenwood Streets, as shown by Dfts. Ex. 2, which is drawn to the scale of 20 feet to the inch and thus shows that the north line of vehicular traffic on South Rail Street is 60 feet south of the south rail of respondent Company's southernmost passing track and apparently the north line of such Street is 105 feet south of the south rail of the westbound main line track.

Walnut Street in 360 feet west of and parallel to Greenwood Street. These are the two principal streets crossing respondent Company's railroad tracks in what might be termed the center of the business section of Shoshone. A fair portion, if not most, of the business houses are on the north side of North Rail Street or on the south side of South Rail Street. Dfts. Ex. 1, a panoramic picture, reproduced herewith, gives a clear and graphic view to the north over the crossing in question, and of signs, service poles and lay of the entire territory involved. Nine hundred fifty feet east of the crossing is respondent Company's coal chute, which clearly appears in the right-hand portion of this panoramic picture.

PLAT No. 1

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

March 27, 1946, Manuel Ineas, employed as a laborer in the Bureau of Highways under the Department of Public Works of the State, as a passenger in a State truck driven by Ottis H. Webb, a carpenter and co-employee, left the shops of the State Highway Department and drove east on South Rail Street, pulling up to and stopping at the stop sign on South Rail Street on the west side of Highway No. 93, or Greenwood Street, then turned slowly to the left or north and proceeded north on Greenwood Street at a speed variously estimated as between three and five miles per hour, or about as fast as a man could walk. Respondent Company's westbound passenger train, traveling at a speed estimated by various witnesses to be from 30 to 55 miles per hour, struck the truck at the intersection of Greenwood Street with the westbound main line track, hurling the truck into the air, widely scattering portions of the truck, throwing the occupants out and killing them, and carrying on the front of the engine to where it stopped, the right-hand door of the truck which contained a canvas completely covering the window part of the door in the place of glass. The engine stopped 1,704 feet west of the crossing. The picture of the inside of this door, taken immediately after the accident (Dfts. Ex. 8) and reproduced herewith, shows the canvas extending clear across the upper or open or window part of the door.

Ineas' widow, and as guardian of three minor children, and Walter C. Musgrave, Manager of the State Insurance Fund of the State of Idaho, the insurance carrier for the Bureau of Public Highways in the Department of Public Works, subrogated to other plaintiffs under Section 72-204 I.C., sued for the death of Ineas, alleging as respondents' acts of negligence: excessive speed of the train, failure to sound a whistle or ring a bell as required by statute, failure of the train crew to watch or maintain a look-out in time to slow said train, or adequately warn users of the crossing of the approach of the train; failure to stop or reduce the speed of the train; failure to provide a watchman or mechanical signal or device at the crossing, and failure to provide an underpass or overpass.

The jury returned a verdict in favor of respondents.

Appellants assign as error striking certain paragraphs of the amended complaint, rulings on evidence, alleged prejudicial remarks of counsel for respondents, and certain instructions given and refused.

At the conclusion of the case, respondents made a motion for a non-suit on the grounds the evidence showed the respondents had in no particular been negligent and that: 'The decedent was guilty of contributory negligence as a matter of law. He knew he was approaching a railroad track on which trains operated. He knew, or by law was charged with knowing, he had to look and listen for the train, which was in plain view at any time when the truck he was in was at least 100 feet from the tracks that the train was upon and which could have been heard, had he listened, for the whistle of the train was being sounded. It is evident he neither looked nor listened, for if he had, he would have both seen and heard the train. He failed to warn or caution the driver to also look and listen, for if he had done that, the driver would have and could have stopped the truck before reaching the tracks. There were positive eye witnesses to the accident, hence no presumption of due care exists. The presumption was clearly destroyed by the negligent acts and conduct of the decedent. The decedent was negligent in not taking adequate means of looking for the train when the right front door of the truck was covered with canvas.'

PLAT No. 2

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The motion was denied.

Section 49-546(a), I.C., is as follows: 'It shall be unlawful for any person to drive any vehicle upon a highway with any sign, poster or other non-transparent material upon the front windshield, side wings, side or rear windows, of such motor vehicle other than a certificate or other paper authorized to be so displayed by authority of competent municipal state or federal officials.'

Section 49-556 I.C., authorizes the Commissioner of Public Works to '* * * classify, designate and mark both intrastate and interstate highways * * * and to provide a uniform system of marking and signing such highways * * *.'

Section 49-558, I.C., prohibits other persons from erecting highway signs. The Idaho Motorist's Guide, issued January 15, 1946 by the Department of Law Enforcement, Boise, contains in connection with drawings of various highway signs, including an octagonal sign with the word Stop in the center thereof, this notation: 'Traffic Signs: Traffic signs warn us of hazards which are not obvious, indicate where reduced speed is necessary, advise us of traffic regulations and guide us on the route we desire to follow: Therefore, it is very important that we are able to recognize quickly what a sign means. Traffic signs have been standardized as to shape, colors, and wording; signs which are most important at night have reflector buttons to indicate their shape and to show such warnings as Stop and R R for railroad crossing.' p. 15.

We are authorized to take judicial notice of this pamphlet and its existence as an official pronouncement of an executive department of the State of Idaho by Section 9-101, I.C. There was, at the time of the accident and as appears upon Dfts.Ex. 1, an official highway Stop sign on the rail crossing sign on the right-hand side of Greenwood Street facing the south and immediately below it was the notation of the number of tracks, being 6.

Merritt, one of appellants' most favorable witnesses, testified he saw the truck approach and stop at the intersection of South Rail and Greenwood Streets and then turn slowly to the north. He did not watch it all the time from then until the collision. No witness except Decker watched the truck's continuous travel on Greenwood Street. Merritt also testified he, himself, was standing on the west side of Greenwood Street about 60 feet south of the southwest corner of Greenwood and South Rail Streets; his view of the track to the east was obscured by the building across, i. e., on the east side of the Street, but he saw the train when it was about half way from the coal chute to the crossing--about 475 feet from the collision point; and the truck at that time was about 40 feet from the point of collision going very slowly or about three miles per hour. He estimated the speed of the train at fifty miles per hour. At that speed, it would go approximately 74.1 feet per second and would take about 6.41 seconds to go from where he first saw it to the point of collision. The truck, at three miles per hour, would go 4.4 feet per second or in 6.41 seconds, it would travel 28.20 feet. At thirty miles per hour it would have taken the train 11.87 seconds to go half way between the coal chute to the crossing, and at three miles per hour the truck would have traveled approximately 52.22 feet.

Decker, the fireman on the engine, testified he saw the truck turning on to Greenwood Street as the engine passed the coal chute; that he watched it continuously until immediately...