Jakeman v. Oregon Short Line Railroad Co.

• Decision Date: 05 February 1927
• Citation: 43 Idaho 505,256 P. 88
• Parties: MARY JAKEMAN, in Her Own Behalf, FLORA JAKEMAN, HATTIE JAKEMAN, ROSE JAKEMAN and VICTORIA JAKEMAN, by Their Guaridan Ad Litem, MARY JAKEMAN, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, P. J. MCDERMOTT, J. S. STODDARD, A. E. GRAHAM and CURTIS B. HILL, Appellants
• Court: Idaho Supreme Court

256 P. 88

43 Idaho 505

MARY JAKEMAN, in Her Own Behalf, FLORA JAKEMAN, HATTIE JAKEMAN, ROSE JAKEMAN and VICTORIA JAKEMAN, by Their Guaridan Ad Litem, MARY JAKEMAN, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, P. J. MCDERMOTT, J. S. STODDARD, A. E. GRAHAM and CURTIS B. HILL, Appellants

Supreme Court of Idaho

February 5, 1927

EVIDENCE-REMOTENESS-NEGATIVE EVIDENCE-RAILROADS-ACCIDENTS AT CROSSINGS-SIGNALS-DUTY OF RAILROAD-ADMISSIBILITY OF EVIDENCE-MODE OF TRAVEL OF PERSON INJURED-CONDITION OF SIGNAL-INSTRUCTIONS TO JURY-APPLICABILITY TO EVIDENCE-LIABILITY OF RAILROAD EMPLOYEES-GENERAL VERDICT-APPEAL AND ERROR.

1. Evidence in action against railroad for death in crossing collision, to effect that locomotive carried a dead headlight, which was traced to almost the scene of accident held not too remote for probative value.

2. Testimony to effect that headlight of railroad locomotive was not burning shortly before crossing collision resulting in death, and that automatic bell at crossing did not ring regularly, held entitled to consideration, although negative in character.

3. Railroad, installing automatic signal in rural community which was not required by law, nevertheless has duty, after installation, of exercising ordinary diligence to maintain signal in working order.

4. Mode of travel, used by person crossing railroad tracks, is to be considered along with all other evidence in determining liability for death resulting from collision with train.

5. In action against railroad for death resulting from collision at highway crossing, testimony relative to automatic bell at crossing being out of order four or five days after accident and that bell did not work in forepart of month in which accident occurred, held inadmissible as being too remote.

6. Giving instruction unsupported by evidence, although law stated is abstractly correct, held not prejudicial error unless it is apparent that instruction confused or misled jury to prejudice of losing party.

7. Where record in action against railroad, engineer, fireman conductor and head brakeman for death in crossing collision is silent as to negligence of fireman and head brakeman, judgment against brakeman and fireman must be reversed; there being no duty, at least on brakeman, imposed by Comp. Stats. 1919, sec. 4820, relative to sounding bell or whistle.

8. Where several grounds of negligence are alleged in complaint, verdict on any one of which would entitle plaintiff to relief prayed for, and general verdict is rendered for plaintiff, an error in admission of evidence or giving of instruction on any one of grounds will necessitate a reversal.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. H. F. Ensign, Judge.

Action for damages. Judgment for respondents. Reversed.

Judgment reversed, and a new trial granted. Petition for rehearing denied.

Geo. H. Smith, H. B. Thompson and J. H. McEvers, for Appellants.

Proof that an engine was traveling at a given point with its headlight out, raises no presumption that it continued to travel without a headlight burning, and proof that a stationary crossing bell was at some remote time out of order raises no presumption that it continued out of order. (Chamberlayne's Handbook on Evidence, sec. 416, pp. 258, 259; High v. Bank of Commerce, 103 Cal. 525, 37 P. 508; Connolly v. Industrial Acc. Com., 173 Cal. 405, 160 P. 239; Collins v. Thode, 54 Mont. 405, 170 P. 941; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897.)

A presumption of continuance does not run backward. (People v. Quong Sing, 20 Cal.App. 806, 127 P. 1056, Tonopah & G. R. Co. v. Fellenbaum, 32 Nev. 278, 107 P. 882, L. R. A. 1918D, 584; Ellis v. State, 138 Wis. 513, 131 Am. St. 1022, 119 N.W. 1110, 20 L. R. A., N. S., 444.)

An inference upon an inference, or a presumption upon a presumption, cannot be allowed. (Chamberlayne's Handbook on Evidence, sec. 415, p. 258; Manning v. John Hancock Mut. Life Ins. Co., 100 U.S. 693, 25 L.Ed. 763; Duncan v. Chicago, R. I. & P. R. Co., 82 Kan. 230, 108 P. 102; Looney v. Metropolitan R. Co., 200 U.S. 480, 26 S.Ct. 303, 50 L.Ed. 564.)

The burden is on plaintiffs to plead and prove negligence. If the proof fails to establish the negligence alleged in the complaint, they cannot recover. (McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; Graham v. Coeur d'Alene, & St. Joe Transp. Co., 27 Idaho 454, 149 P. 509; Fimple v. Southern P. Co., 38 Cal.App. 727, 177 P. 874; Antler v. Cox, 27 Idaho 517, 149 P. 731; 20 R. C. L., sec. 161, p. 194.)

Thirty miles an hour is not an excessive rate of speed in a rural community. (Burrow v. Idaho & W. N. R. Co., 24 Idaho 652, 135 P. 838; Sandoval v. Atchison, T. & S. F. R. Co., 30 N.M. 343, 233 P. 840.)

Negative testimony must yield to positive testimony, and unless negative testimony is clear and convincing, it raises no conflict. (Burrow v. Idaho & W. N. R. Co., supra; Igle v. People's Ry. Co., 5 Del. 376, 93 A. 666; Missouri, K. & T. Ry. Co. v. McCoy, 7 Ind. Ter. 288, 104 S.W. 620; C. S., secs. 4796, 4820.)

It is prejudicial error to give an instruction, even though the law stated be abstractly correct, where there is no evidence to support it. (14 R. C. L., sec. 51, p. 786; Russell v. Oregon R. & N. Co., 54 Ore. 128, 102 P. 619; Chicago, R. I. & P. R. Co. v. Huston, 95 U.S. 697, 24 L.Ed. 542.)

It is immaterial whether the bell on the engine was not rung or the whistle was not blown, inasmuch as the stationary crossing bell was ringing, and had Jakeman listened, he would have heard it. (Chicago, M. & St. P. R. Co. v. Clarkson, 147 F. 397, 77 C. C. A. 575; Turnier v. New York Cent. R. Co., 124 Misc. 269, 207 N.Y.S. 316; State v. Maine C. R. Co., 76 Me. 357, 49 Am. Rep. 622.)

A joint judgment against two or more joint tort-feasors is an entirety and indivisible. If it is void as to one, it is void as to all. (Finley v. Southern Ry. Co., 5 Ga.App. 722, 64 S.E. 312; Woods v. Bowman, 200 Ill.App. 612; Contakis v. Flavio, 221 Mass. 259, 108 N.E. 1045; Anderson v. Fruitvale Transp. Co., 195 Mich. 734, 162 N.W. 273; Davis v. Whiting & Son Co., 201 Mass. 91, 18 A. L. R. 782, 87 N.E. 199.)

C. A. Bandel, J. H. Peterson and T. C. Coffin, for Respondents.

"Evidence of witnesses who were near a train at the time of the accident at a crossing that they heard neither the whistle nor bell till the train passed the crossing, is not merely negative, but is sufficient to show that the proper signals were not given." (Mackrall v, Omaha & St. L. R. Co., 111 Iowa 547, 82 N.W. 975; E. Bradford Clarke Co. v. Baltimore & O. R. Co., 27 Pa. Super. Ct. 251; Cotton v. Willmor & S. F., 99 Minn. 366, 9 Ann. Cas. 935, 109 N.W. 835, 8 L. R. A., N. S., 643; Gibson v. Bessemer & L. E. R. Co., 226 Pa. 198, 18 Ann. Cas. 535, 75 A. 194, 27 L. R. A., N. S., 689; Walters v. Chicago, Milwaukee & Puget Sound Ry. Co., 47 Mont. 501, 133 P. 357, 46 L. R. A., N. S., 702.)

The warning given by railroads on approaching dangerous crossings must be commensurate and reasonable under all the circumstances. (Spitzer v. New York Central R. R. Co., 211 A.D. 332, 207 N.Y.S. 312; Rayme v. Rutland R. C. Co., 204 A.D. 135, 198 N.Y.S. 261; Green v. Southern P. Co., 53 Cal.App. 194, 199 P. 1059; Missouri, K. & T. Ry. Co. v. Stanton, 78 Okla. 167, 189 P. 753; Sipowicz v. Lehigh Valley R. Co., 188 A.D. 715, 179 N.Y.S. 243; Chesapeake & O. Ry. Co. v. Steele, 84 F. 93; 29 C. C. A. 81; Pennsylvania R. Co. v. Miller, 99 F. 529, 39 C. C. A. 642; Reed v. Queen Anne's R. Co., 4 Del. 413, 57 A. 529; Ortolano v. Morgan's L. & T. R. & S. S. Co., 109 La. 902, 33 So. 914; English v. Southern P. Ry. Co., 13 Utah 407, 57 Am. St. 772, 45 P. 47, 35 L. R. A. 155.)

"A railroad company, having installed an automatic bell at a crossing to warn travelers, is bound to use reasonable care to keep it in good condition, though there is no law requiring it to be installed." (Lake Erie & W. R. Co. v. Howarth, 73 Ind.App. 454, 127 N.E. 804; Washington v. Birmingham Southern R. Co., 203 Ala. 295, 82 So. 545; Lake Erie & W. R. Co. v. Howarth, 73 Ind.App. 454, 124 N.E. 687; Metcalf v. Central Vermont Ry. Co., 78 Conn. 614, 63 A. 633; Cleveland, C. C. & St. L. Ry. Co. v. Coffman, 30 Ind.App. 462, 64 N.E. 233, 66 N.E. 179.)

"Joint tort-feasors being ordinarily jointly and severally liable, judgment may for that reason be against part of them and in favor of the remainder although all are sued jointly." (1 Freeman on Judgments, 5th ed., sec. 109, p. 196; 1 Black on Judgments, par. 207, p. 307; Hayden v. Woods, 16 Neb. 306, 20 N.W. 345; Gross v. Scheel, 67 Neb. 223, 93 N.W. 418; Sparrow v. Bromage, 83 Conn. 27, 19 Ann. Cas. 796, 74 A. 1070, 27 L. R. A., N. S., 209; Albright v. McTighe, 49 F. 817.)

BAUM, District Judge. Givens, Taylor and T. Bailey Lee, JJ., concur. Budge, J., took no part. Wm. E. Lee, C. J., dissents.

OPINION

BAUM, District Judge.

This is an action instituted by Mary Jakeman in her own behalf and as guardian for the minor children of Mary Jakeman and James W. Jakeman, deceased, against the defendants, Oregon Short Line Railroad Company and four members of the train crew, to recover damages for the death of James W. Jakeman, which occurred in a crossing accident shortly after 7 o'clock P. M. on October 18, 1923, at a railroad crossing about one mile north of Rigby, Idaho. The complaint contains the usual averments as to the defendant being a common carrier and alleges that McDermott was the engineer, Stoddard the fireman, Graham the conductor and Hill the head brakeman on the train. As grounds for negligence the complaint alleges:

1. Traveling at a high, dangerous, reckless and...