Judd v. Oregon Short Line Railroad Co.

Decision Date20 April 1935
Docket Number6160
Citation55 Idaho 461,44 P.2d 291
PartiesE. S. JUDD, Jr., and MARY J. JUDD, Husband and Wife, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, and WM. E. CLINKINGBEARD, Appellants
CourtIdaho Supreme Court


1. Testimony as to locomotive engineer's statements shortly after collision with automobile, while still unnerved and shocked by accident, that he did not know how it happened that it seemed to be his unlucky day, and that he had had two other crashes, held admissible as part of res gestae.

2. Testimony as to locomotive engineer's statements shortly after collision with automobile that he did not know how accident happened, that it seemed to be his unlucky day, and that he had had two other crashes, held admissible against him as admissions or statements against interest.

3. Admission of testimony as to locomotive engineer's statements shortly after collision with automobile in action against him and railroad company for injuries to automobile driver held not prejudicial to company, in absence of motion thereby to withdraw testimony as to it from jury; testimony being admissible against engineer.

4. Instruction that witness' credit may be impeached by proof of his contrary statements out of court and that jury can totally disregard testimony of witness so impeached as to any material matter held not erroneous (I. C. A., sec 16-1210).

5. Statute authorizing impeachment of witness by showing statement by him contrary to his testimony does not require that falsity of such statement be shown (I. C. A., sec 16-1210).

6. Allegation of complaint in action against railroad company for injuries to automobile driver in crossing collision that defendant's employees in charge of engine could have applied brakes or otherwise slackened speed thereof, so as to avoid striking automobile, while plaintiff was unable to extricate himself from perilous position, if they had maintained lookout and exercised ordinary care with means at their command, held sufficient to present last clear chance issue.

7. Refusal of defendant railroad company's requested instruction on last clear chance rule in action for injuries to automobile driver in crossing collision held not prejudicial to it.

8. Evidence in action against railroad company for injuries to automobile driver in crossing collision, held sufficient to take to jury question of defendant's liability under last clear chance doctrine.

9. Evidence in action against railroad company for injuries to automobile driver in crossing collision held sufficient to support verdict for plaintiff on theory of defendant's general negligence in failing to sound whistle and ring bell and apply brakes in time to avoid collision.

10. Whether driver of automobile, struck by locomotive at railroad crossing, exercised due diligence in looking and listening for approaching trains, held for jury.

11. Driver of automobile approaching railway track must look and listen for approaching trains before attempting to cross.

12. Whether automobile driver stopped, looked and listened at proper time and place within view of or in proper proximity to railroad track, or should have stopped again before driving onto track, are questions for jury.

13. Automobile driver's contributory negligence in failing to see or hear approaching locomotive or observe that his vision thereof was obscured of a sector of track, to make another effort to obtain vision of entire track or to look again or stop automobile before driving onto track over steep ascent held for jury.

14. Rule that automobile driver, about to cross railroad track must keep lookout for approaching trains does not require him to keep his eyes constantly on track, as he must give some attention to automobile and road.

15. Instruction that jury could not assess damages by adding various amounts which each juror thought should be awarded plaintiffs and dividing total by 12, held erroneous as assuming that verdict should be for plaintiffs, though evidence as to defendant's negligence was conflicting.

16. Instruction apparently assuming that verdict should be for plaintiff, though evidence of defendant's negligence was conflicting, held not error, in view of instruction to consider instructions as whole and instructions admonishing jury as to facts plaintiffs must establish by preponderance of evidence and burden on them to establish every material fact, except contributory negligence.

17. Whole law of case cannot be embodied in single instruction, but jury must consider instructions as whole.

18. Locomotive engineer, seeing automobile approaching track when locomotive was coasting downgrade some 300 feet from crossing, owed common-law duty to give warning by sounding whistle or bell, whether crossing was private crossing or public crossing of "road or highway" within statute requiring bell or whistle to be sounded at least 80 rods therefrom (I. C. A., secs. 39-101, 60-412).

19. Whether whistle was blown and bell rung by engineer of locomotive approaching crossing at which it struck automobile held for jury on conflicting evidence.

20. Submission to jury of two forms of verdicts for plaintiff in action against railroad company and locomotive engineer for death and injuries in crossing collision with automobile, and receipt of separate verdict against engineer for nominal sum and against company for substantial damages, held not ground for disturbing either verdict.

21. Railroad company, not objecting to submission to jury or reception of separate verdicts against it and locomotive engineer in action against them as joint tort-feasors at time of such submission or return of verdicts into court, cannot object thereto in supreme court on grounds of informality or insufficiency (I. C. A., sec. 7-218).

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. D. H. Sutphen, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs in favor of respondents. Petition for rehearing denied.

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

It is error to instruct a jury that they may disregard all of the testimony of a witness if they believe he has made any statements out of court at variance with his testimony, regardless of whether such statement was known to be false when made or a wilful and intentional falsehood with respect to a material matter testified by the witness upon the trial. (State v. Boyles, 34 Idaho 283, 200 P. 125; 2 Wigmore on Evidence, sec. 1013; 50 Cyc. 2586-2590; Vande Veegaete v. Vande Veegaete, 75 Mont. 52, 243 P. 1082, 1084.)

One about to cross a railroad track must not only look and listen, but must do so from a point where his observation is effective. (Testo v. Oregon-W. R. & N. Co., 34 Idaho 765, 203 P. 1065; Koster v. Southern P. Co., 207 Cal. 753, 279 P. 788.)

It is prejudicial and reversible error for the court, in instructing the jury, to assume that they will assess damages or render a verdict for the plaintiff. (64 Corpus Juris, 531, 532, 535; Texas & Pacific Coal Co. v. Sherbley, (Tex. Civ. App.) 212 S.W. 758.)

A jury may not in a verdict, or verdicts, against joint tort-feasors apportion the amount of damages which each defendant shall pay, and it is reversible error to receive such verdicts and render judgment thereon. (Third Decennial Digest, "Trials," sec. 335, with decisions cited; McCool v. Mahoney, 54 Cal. 491; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543.)

A. F. James, for Respondents.

Section 60-412, I. C. A., requires railroads to blow a whistle or ring a bell at crossing on all streets, roads and highways.

Statutes worded as sec. 60-412, I. C. A., is worded are held applicable to private crossings as well as to public ones. (Gregoriev v. Northwestern P. Ry. Co., 95 Cal.App. 428, 273 P. 76; Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848, 63 N.W. 51 (1), 28 L. R. A. 824; McQuin v. Missouri P. R. Corp., 122 Neb. 423, 240 N.W. 515, at 520, col. 2.)

When it has been established that the defendant has been guilty of negligence per se, it is usually the province of the jury to determine whether such negligence was the proximate cause of plaintiff's injury. (Wheeler v. Oregon R. & N. Co., 16 Idaho 375, at 408, 102 P. 347; Petersen v. Lewis, (Cal. App.) 32 P.2d 641.)

The duty of a person crossing a railroad track is to exercise such care as would be exercised by a man of ordinary prudence under like circumstances. (Graves v. Northern P. Ry. Co., 30 Idaho 542 (3), 166 P. 571; Wheeler v. Oregon R. & N. Co., 16 Idaho 375 (13), 102 P. 347; Smith v. Oregon S. L. R. Co., 32 Idaho 695, at 700, 187 P. 539.)

The test in contributory negligence cases is whether or not the plaintiff did all that reasonable prudence required him to do under the circumstances. (Carscallen v. Coeur d'Alene etc. Co., 15 Idaho 444, at top of page 453, 98 P. 622, 16 Ann. Cas. 544.)

Even though plaintiff be guilty of contributory negligence this fact does not defeat his right to recover unless such contributory negligence was the proximate cause of the injury. (Heaney v. Chicago & N.W. Ry. Co., 213 Wis. 670, 252 N.W. 173; Osier v. Consumers Co., 42 Idaho 789, 248 P. 438; Tendoy v. West, 51 Idaho 679, 9 P.2d 1026; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254.)

Where instructions, when all read together, may be harmonized and reconciled, the court will...

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