Interstate Motor Lines, Inc. v. Neal

Citation116 Colo. 242,179 P.2d 665
Decision Date07 April 1947
Docket Number15854.
CourtSupreme Court of Colorado

Rehearing Denied April 21, 1947.

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by George A. Neal against Interstate Motor Lines, Inc., to recover for injuries sustained by plaintiff when defendant's tractor and trailer derailed locomotive on which plaintiff was employed. To review a judgment for the plaintiff, the defendant brings error.

Judgment affirmed.

Refusal to give truck owner's requested instruction on excessive rate of speed of locomotive, as proper, where requested instruction contained a number of statements not supported by any evidence, truck was driven on railroad track when train was too close to be stopped, and crossing was in open country and not in any city or town.

Wolvington & Wormwood, of Denver, for plaintiff in error.

Charles R. Enos, of Denver, for defendant in error.

LUXFORD Justice.

An action in tort for damages. Plaintiff in error was defendant and defendant in error was plaintiff, below.

About 7 o'clock p. m. on November 7, 1944, a freight train ran into defendant's tractor and trailer at a railway crossing in Larimer county, Colorado. The locomotive was derailed and turned over, and both the engineer and fireman sustained personal injuries for which they brought separate suits and enjoyed favorable verdicts and judgments.

Plaintiff's evidence indicated (defendant offered none) that the train as it approached the crossing, was proceeding in a westerly direction at the rate of 20 to 25 miles per hour. The headlight of the locomotive was burning, the bell ringing and the whistle had been blown for the crossing. Defendant's tractor and trailer coming from the south, at a speed of 35 miles per hour, was driven upon the track in front of the train when it was so close to the crossing that the engineer did not have time to apply the emergency brakes Before the collision. At the close of plaintiff's case, defendant moved for a nonsuit on the ground that plaintiff had failed to sustain the burden of proof. The court overruled the motion; exception was allowed, and defendant rested.

1. It is claimed, first, that plaintiffs failed to sustain the burden of proof and therefore judgment should have been entered for defendant. The jury, proceeding on competent evidence, found otherwise. The undisputed evidence shows that the headlight of the locomotive was burning and threw an effective light for 1200 feet. It is clear that the driver of defendant's tractor and trailer did not look Before entering upon the crossing. If he had, he could not have avoided seeing the train, for he had an unobstructed view of it. True, he did not testify, but, 'From all the facts and circumstances there is but one conclusion deducible, viz., he did not look, because, if he had, he could not have failed to discern the train approaching the crossing he was about to drive over.' Westerkamp v. Chicago, B. & Q. Ry. Co., 41 Colo. 290, 297, 92 P. 687, 689. The accident was the direct result of carelessness and negligence of defendant's employee. It was incumbent upon him not only to look and listen, but to select a place where the act of looking and listening would be reasonably effective. This he did not do. Colorado & S. R. Co. v. Ford, 70 Colo. 408, 201 P. 892.

2. It is next alleged that the court erred in giving instruction No. 8, particularly that sentence which reads: 'It was the duty of the driver of the truck to pick out a point where he could look effectively and hear effectively, and come to a stop if necessary, even if to do so he has to stop Before reaching the track.' This court has held that the duty of the traveller may require him to stop in order to render looking and listening effective. Chicago, R.I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 P. 286, 287.

3. Finally, it is contended that the court erred: (1) In refusing to give defendant's requested instruction No. 1 on unavoidable accident. An...

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3 cases
  • Buchholz v. Union Pac. R. Co.
    • United States
    • Colorado Supreme Court
    • 20 Mayo 1957
    ...of the Buchholz truck in the instant case. Later cases reaffirming the principles and the cases cited above are Interstate Motor Lines v. Neal, 116 Colo. 242, 179 P.2d 665; Colorado & Southern Ry. Co. v. Barth, 117 Colo. 17, 183 P.2d 549. Also see Kutchma v. Atchison, T. & S. F. Ry. Co., 10......
  • Peterson v. Schwartzmann, 15792.
    • United States
    • Colorado Supreme Court
    • 7 Abril 1947
  • Interstate Motor Lines, Inc. v. Klein, 15855.
    • United States
    • Colorado Supreme Court
    • 7 Abril 1947
    ...trial, and are here submitted for consideration on the same briefs. The instant case presents no issue which was not considered in the Neal case, supra, consequently our decision in the latter case is and controlling here. The judgment is affirmed. BURKE, C.J., and JACKSON, J., concur. ...

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