Jarvella v. Northern Pac. Ry. Co.

• Decision Date: 21 December 1935
• Docket Number: 7454.
• Citation: 53 P.2d 446,101 Mont. 102
• Parties: JARVELLA v. NORTHERN PAC. RY. CO. POHIA v. SAME.
• Court: Montana Supreme Court

53 P.2d 446

101 Mont. 102

JARVELLA v. NORTHERN PAC. RY. CO.

POHIA v. SAME.

No. 7454.

Supreme Court of Montana

December 21, 1935

Rehearing Denied Jan. 21, 1936.

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Actions by Theodore Jarvella and by Raymond Pohia against the Northern Pacific Railway Company. From the judgments, the defendant appeals.

Affirmed.

Walker & Walker, of Butte, and Gunn, Rasch, Hall & Gunn, of Helena for appellant.

Thomas J. Davis and L. C. Myers, both of Butte, for respondents.

ANDERSON Justice.

Theodore Jarvella and Raymond Pohia each brought separate actions against the defendant railway company to recover damages for personal injuries sustained by them in a collision of a Hudson automobile in which they were riding, with a standing freight train at the defendant's crossing on South Montana street in the city of Butte about 1:15 o'clock a m. of February 4, 1934. Both actions are based on the same state of facts, and the two cases were consolidated for trial and tried together. Separate verdicts were returned and separate judgments entered. The appeal is from the two judgments. No motion for a new trial was made.

Defendant at the close of plaintiff's case, made a motion for nonsuit, which was denied. At the close of the evidence defendant moved for a directed verdict, which was likewise denied. Error is assigned on these two rulings and the making and entering of judgment. By these specifications defendant questions the sufficiency of the evidence to establish actionable negligence on its part, and avers that under the evidence it is established that plaintiffs were guilty of contributory negligence as a matter of law.

In the case of Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49, 52, we said: "This court has often announced the rule that upon motion for nonsuit or directed verdict the evidence must be viewed from the stand-point most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove. Nangle v. Northern Pacific Ry. Co., 96 Mont. 512, 32 P.2d 11. No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence. Id."

Plaintiffs in their several complaints allege that the defendant railway company was negligent in the following particulars: (1) Failing to install and maintain a light at the crossing; (2) failing to have a person or watchman give warning of the presence of the train; (3) failing to have the train of freight cars lighted; (4) failing to sound a bell or whistle or give any other notice or warning of the presence of the train of freight cars; (5) failing to have any gates or arms or other signal indicating the presence of the train of freight cars; (6) running the train of freight cars on the crossing without giving any warning, by ringing the bell or sounding its whistle.

Montana street in the city of Butte runs in a northerly and southerly direction. The main line of the defendant railway company running from Butte to Missoula crosses Montana street in an easterly and westerly direction. The street from the north runs down grade to the railway crossing, although the grade is slight at the crossing and north of it for a short distance. The crossing is level with the street. A strip of concrete paving 18 feet in width is in the middle of the street. Silver Bow creek crosses Montana street approximately 100 feet north of the railway crossing; it is spanned by a bridge about 50 feet wide. There are no buildings or structures of any kind north of the crossing and east of the street. West of the street and north of the crossing is the Domestic Manganese & Development Company's plant, a building the east side of which is 249 feet west of the west line of the paved part of the street. An elevated trestle extends along the south side of the building, which was testified to be from 20 to 40 feet in height. North of the manganese company's building and north of Silver Bow creek are slag piles or walls from 16 to 18 feet high, the east boundary line of which ranges from 26 to 46 feet distant from the west line of the pavement. This slag pile or wall begins on the north bank of Silver Bow creek and extends northward approximately parallel to the street for a distance of several hundred feet. South of the crossing and west of the street are three buildings of the Montana Power Company extending north and south a distance of 343 feet, which includes the open spaces between them. The distance of the east line of these buildings from the west line of the paving ranges from 35 to 51 feet. A little east of Montana street and immediately south of the railway is a small watchman's shanty, and south of the crossing is the Montana Power Company's warehouse, the west line of which is 192 feet from the east line of the paving, and 287 feet from the crossing. North of this warehouse and beginning at a point along Montana street running southeasterly is a high tight-board fence. The street is an arterial highway, many cars using it daily, estimated by a witness to be several thousand in number.

The railway company maintains at this crossing up to midnight a watchman; after that hour and until some time in the morning no watchman is there maintained. No bells, gates, or other warning signals are maintained at the crossing, aside from the ordinary crossing sign similar to those used on rural railway crossings.

Defendant railway company's train left Butte, bound for Missoula, at 1 o'clock a. m., on February 4, 1934. It consisted of a locomotive, caboose, and nineteen cars--nine box cars, seven flat cars, one refrigerator, and an automobile car. As this train was passing over the crossing, a Ford automobile driven by one Jack McAuliff collided with the train, broke the air line of the train, and caused the train automatically to stop. This automobile was driven in between two of the flat cars and was dragged westerly off of the crossing. After the train had been thus stopped and while it was blocking the entire crossing, plaintiff Jarvella, driving southerly down Montana street, collided with the standing train, his car going in between two box cars. Plaintiff Pohia was riding in the car with Jarvella.

Jarvella testified that he was proceeding down the street at a speed of approximately 25 miles an hour with his car under control; that the car was a 1928 Hudson which he had driven for approximately six years; that the brakes were in fair working condition; that he could stop the car running at a speed of 25 miles an hour in a distance of 45 feet; that the "bright spot" of his lights was from 30 to 36 feet in front of the car; that for that distance and further in front of the car was what he termed the "glow" of the lights; that within this "glow" he could see objects, but not distinctly; that the night was very dark and no lights were on the crossing; that as he proceeded down the street he was looking ahead and did not see the train blocking the crossing until he was distant about 30 feet from the cars; that he applied the brakes and attempted to swerve his car to avoid striking the train; and that the collision ensued, resulting in the injuries of which these plaintiffs complain.

It appears from the record that although no lights are maintained at this crossing, immediately south of the crossing the Montana Power Company maintains lights which at times are burning, tending in some measure to light the crossing, but which at the time of this accident had been turned off. Other witnesses of plaintiffs testified that the night was very dark. Some of them testified that the night was clear, but no moon was shining; others thought that it was misting at the time, a condition which would indicate that the night was cloudy. Plaintiffs testified that no other automobiles were present at the crossing at the time they proceeded down Montana street, and that no lights were around the crossing. These facts are disputed by the witnesses for the railway company, who testified that from one to six cars were waiting there, and that some of the trainmen carrying lighted electric lanterns reached the crossing prior to the collision of the Hudson car with the train. Plaintiffs testified they were vaguely familiar with the crossing.

Montana street, at the railway crossing, is partly within and partly without the boundaries of the city of Butte. It appears from the record that the easterly 8 feet of the paved part of the street is within the boundaries of the city of Butte, and that that part of the pavement and street lying west of this line is without the limits of the city. Plaintiffs in their complaint allege that the crossing is "just outside" the city limits. The proof establishing the facts with reference to the location of the city boundary at this point was admitted over objection. No error is assigned, however, on the admission of the testimony.

Plaintiffs argue that, under the provisions of section 6521, Revised Codes 1921, it was incumbent on the railway company to light its track within the city of Butte, and that therefore defendant was negligent per se. The pertinent part of the section provides: "If any railroad corporation within this state shall *** fail to light its track in any city in this state *** [it] shall be deemed guilty of a misdemeanor." The statute then provides penalties for the violation of the numerous provisions of this section.

It is urged by the defendant that the particular provision of the statute is void for uncertainty, in that no rule or standard is fixed as to the places where lights are to be installed or the kind or character of lights to be used; in other words, that from a reading of the statute one would be unable to determine when he had...