Interstate Motor Lines v. Great Western Ry. Co.

• Decision Date: 19 May 1947
• Docket Number: No. 3423.,3423.
• Citation: 161 F.2d 968
• Parties: INTERSTATE MOTOR LINES, Inc., v. GREAT WESTERN RY. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

161 F.2d 968 (1947)

INTERSTATE MOTOR LINES, Inc., v. GREAT WESTERN RY. CO.

No. 3423.

Circuit Court of Appeals, Tenth Circuit.

May 19, 1947.

Kenneth M. Wormwood, of Denver, Colo. (William T. Wolvington, of Denver, Colo., on the brief), for appellant.

Kenneth W. Robinson, of Denver, Colo. (Caldwell Martin and M. B. Holt, Jr., both of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The railroad track of the Great Western Railway Company and North Washington Highway cross at a point about three miles east of Loveland, Colorado, called Bird's Crossing. A train belonging to the railway company and a truck owned by Interstate Motor Lines, Inc., collided at the crossing. The train consisted of the engine, twelve freight cars, and the caboose. The truck consisted of a diesel motor and tandem trailer, and it was loaded with approximately 30,000 pounds of chilled meat. The railway company instituted this action against the motor company to recover damages. It was alleged in conventional language that the negligence of the motor company was the proximate cause of the collision. The motor company denied negligence on its part, and by cross complaint sought to recover damages alleging that the negligence of the railway company was the efficient cause of the accident. The case was tried to a jury, verdict was returned for the railway company, judgment was entered accordingly, and the motor company appealed.

Error is assigned upon the refusal of the trial court to direct a verdict for the motor company. The argument is that there was no evidence establishing negligence on the part of the motor company; but that assuming the evidence did show negligence on its part, the railway company was guilty of contributory negligence as a matter of law and therefore was not entitled to recover. It is the law in Colorado that negligence on the part of the defendant will not authorize recovery of damages where the plaintiff was also guilty of contributory negligence which was one of the proximate causes of the injury. Headley v. Denver & R. G. R. Co., 60 Colo. 500, 154 P. 731; People v. Schaeffer, 100 Colo. 70, 65 P.2d 699. It would not serve any useful purpose to review in detail the evidence bearing upon the question of negligence and contributory negligence. It is enough to say in this connection that we think the evidence in its totality presented an issue of fact as to each question and that therefore the court providently denied the motion for a directed verdict.

Complaint is made that the court admitted in evidence two regulations promulgated by the Interstate Commerce Commission under the Motor Carrier Act of 1935, as amended, 49 U.S.C.A. § 301 et seq. One of the regulations provides in effect that the speed of a motor vehicle operated in interstate commerce for hire shall upon approaching a railroad crossing be reduced to a rate that will enable a stop to be made before reaching the nearest rail, and that the crossing shall not be traversed until due caution has been taken to ascertain that the course is clear; and the other provides in substance that no such motor vehicle shall be driven at a greater speed than is reasonable and prudent, having due regard for existing conditions. In Wright v. Des Moines R. Co., 231 Iowa 410, 1 N.W.2d 259, it was held that the book of rules and regulations adopted by the commission under the Act, was not admissible in evidence. But there the entire book of rules was admitted. It contained 84 pages and dealt in large part with matters plainly foreign to the issues in the case. The court did take occasion to say in connection with its discussion of one of the rules which was admitted in evidence here that it was not material to the issues; and that as the rules of the commission do not have the force and effect of law, a violation of them would not constitute negligence. The Act, supra, authorizes and empowers the commission to establish reasonable rules and regulations governing contract carriers by motor vehicle with respect to safety of operation, 49 U.S.C.A. § 304. Rules and regulations promulgated by the commission within the scope of its permitted authority under the Act have the force and effect of law. And while the provisions of the Act or of valid regulations promulgated under it with respect to safety of operation of motor vehicles on the highway may be intended primarily for the protection of employees engaged in transportation in interstate commerce for hire, the duties imposed by such provisions or such regulations are secondarily for the protection of others on the highways with right. Fairport, Painesville & Eastern Railroad Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446.

Under the law of Colorado, the failure of a truck engaged in commercial operation on the highway to comply with a governing statute or municipal ordinance reasonably intended to protect and safeguard the public constitutes negligence, and damages may be recovered if the negligence was the efficient cause of injury. Denver & R. G. R. Co. v. Ryan, 17 Colo. 98, 28 P. 79; Denver, T. & G. R. Co. v. Robbins, 2 Colo.App. 313, 30 P. 261; Denver Omnibus & Cab Co. v. Mills, 21 Colo. App. 582, 122 P. 798; Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460, Ann.Cas.1914B, 29; Hedges v. Mitchell, 69 Colo. 285, 194 P. 620; Crosby v. Canino, 84 Colo. 225, 268 P. 1021; Colorado & S. R. Co. v. Honaker, 92 Colo. 239, 19 P.2d 759. Where damages are sought for injury proximately caused by the negligent operation of a train, truck, or taxicab in violation of a controlling municipal ordinance, the ordinance is admissible in evidence. Hedges v. Mitchell, supra. And we think that by fair analogy in a case of this kind where the operation of a truck engaged in interstate commerce for hire in violation of the regulations of the commission promulgated under authority of the Act is relied upon as constituting an element of negligence, the regulations are admissible in evidence.

The action of the court in rejecting certain tendered evidence is challenged. The fireman on the engine involved in the accident was called as a witness for the railway company. On cross examination, he testified that the crossing was a dangerous one; and later in the course of cross examination, he testified that it was a bad crossing. That testimony was admitted without objection and remained before the jury. The motor company sought on further cross examination to prove by the witness that on previous occasions he had a number of close calls at the crossing; that on one or two previous occasions he had known of women going in the ditch to avoid hitting the train; that on previous occasions he had told the engineer to stop in order to avoid a collision; that he had known of the engineer applying the air-brakes and stopping to avoid a collision; that he did not know why an underpass had not been provided there; and that it was the worst crossing in the world. In rejecting the tendered testimony, the court expressed the view that the testimony was opinion evidence; but the court stated in connection with the ruling that the motor company might interrogate the witness with respect to the physical conditions at the crossing as indicating that it was a dangerous crossing. In T. & H. Pueblo Bldg. Co. v. Klein, 5 Colo.App. 348, 38 P. 608, a girl was killed by falling out of an elevator...