Kerby v. Oregon Short Line Railroad Co.

Decision Date29 February 1928
Docket Number4681
Citation264 P. 377,45 Idaho 636
PartiesD. H. KERBY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

RAILROADS-ACCIDENTS AT CROSSING-RINGING OF BELL AND BLOWING OF WHISTLE-PRIMA FACIE CASE-BURDEN OF PROOF-EVIDENCE-NEGATIVE TESTIMONY-CONDUCT OF COUNSEL.

1. Failure of railroad to ring bell or sound whistle when approaching highway crossing, as required by C. S., sec 4820, is insufficient in itself to authorize a recovery unless plaintiff can show that injury was inflicted by the locomotive or train.

2. Fact that railroad failed to ring bell or sound whistle on approaching a highway crossing, as required by C. S., sec 4820, makes prima facie case of negligence to be submitted to jury, in action for injury to cattle at highway crossing.

3. In action for injury to cattle at a highway crossing, where four witnesses, who at time of accident were within vicinity of crossing, testified they did not hear whistle, and defendant's engineer was only witness who positively testified whistle was blown, credence and weight to be given such testimony, in view of presumption that engineer performed his duty to sound whistle, was for jury, and hence denial of defendant's motion for non-suit, because evidence did not show failure to sound whistle on approaching crossing, as required by C. S., sec. 4820, was not error.

4. In action for injury to cattle at a highway crossing, where defendant's engineer testified that cattle were struck on a public crossing, instruction that failure to ring bell or sound whistle, as required by C. S., sec. 4820, was negligence per se and rendered railroad liable, unless injury was contributed to by owner of cattle, held not error, as permitting jury to find railroad was liable if cattle were struck any distance from crossing.

5. In action for injury to cattle at highway crossing, error in instruction that failure of railroad to ring bell or sound whistle, as required by C. S., sec. 4820, was negligence per se, and rendered railroad liable, unless owner of cattle contributed to injury, was harmless, where there was no sufficient evidence to overcome prima facie case, made by proof that crossing signals were not given.

6. Rule that proof of failure of railroad to ring bell or sound whistle when approaching highway crossing, as required by C S., sec. 4820, makes prima facie case of negligence for jury does not relieve plaintiff on all evidence from burden of proof, but simply shifts burden of evidence, or of going on with further evidence.

7. In action for injury to cattle at a highway crossing, whether, on all the evidence, railroad's failure to ring bell or sound whistle when approaching crossing, as required by C. S., sec. 4820, was negligence causing injury, was for jury.

8. Where attention of those testifying to a negative was not attracted to occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witness who was in position favorable for observation and who testifies positively to occurrence.

9. Where witness testifies he failed to see or hear, such evidence is relevant, provided surroundings and circumstances are such that probability or inference is that alleged fact would have been seen or heard had it existed or happened.

10. In action for killing cattle at a highway crossing, where railroad's only claim was that its engineer blew whistle on ap- proaching crossing, refusal of its requested instruction that either ringing bell or sounding whistle was compliance with C. S., sec. 4820, was not error, especially where such matter was covered by given instructions.

11. In action for killing cattle at railroad crossing, argument of plaintiff's counsel as to railroad's permitting inexperienced men to pass on similar claims and forcing livestock owners into litigation held not reversible error, in view of trial court's admonition and instruction to jury to disregard.

12. Arguments of counsel should be confined to issues and evidence and inferences legitimately to be drawn therefrom, and not to matters outside record, in effort to prejudice rights of opposite party.

13. Judgments will not be reversed for misconduct of counsel at trial unless appellate court is of opinion it had prevailing influence on jury to appellant's detriment.

14. Matter of directing and controlling trial, including argument of counsel, to great extent rests within trial court's discretion.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. Ed. L. Bryan, Judge.

Action for damages for killing stock at railroad crossing. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

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

Before negative testimony is admissible for any purpose, and before it will rise to the importance of affirmative proof, it must be shown that the witness was in a position to hear, and that he would in all probability have heard had the whistle blown and the bell rung. (Schlessinger v. Schlessinger, 39 Colo. 44, 88 P. 970, 8 L. R. A., N. S., 863; Fincher v. Bosworth & Co., 77 Colo. 496, 238 P. 38; 22 C. J. 169; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897; Lyons v. Chicago City Ry. Co., 258 Ill. 75, 101 N.E. 211; Gibb v. Hardwick, 241 Mass. 546, 135 N.E. 868; Dodds v. Omaha & C. B. Street R. Co., 104 Neb. 692, 178 N.W. 258; Jensen v. Oregon Short Line R. Co., 59 Utah 367, 204 P. 101.)

Negative testimony must yield to positive testimony, and unless negative testimony is clear and convincing, it raises no conflict in evidence to be submitted to the jury. (Burrow v. Idaho & W. N. R. R. Co., 24 Idaho 652, 135 P. 838; Chicago & N.W. R. Co. v. Andrews, 130 F. 65, 64 C. C. A. 399; Lehigh Valley R. Co. v. Mangan, 278 F. 85; Missouri, K. & T. Ry. Co. v. McCoy, 7 Ind. Ter. 288, 104 S.W. 620; Weir v. Kansas City Rys. Co., 108 Kan. 610, 196 P. 442; Cartwright v. New Orleans Ry. & Light Co., 131 La. 210, 59 So. 124; Williamson v. Wabash R. Co., 139 Mo.App. 481, 122 S.W. 1113.)

The duty to ring the bell and blow the whistle, as provided by sec. 4820, C. S., applies only to men and animals using the public highway, and not to trespassers or those straying upon the tracks, or loitering about or near a crossing. (Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347; 22 R. C. L., p. 1002, sec. 230; Fisher v. Pennsylvania R. Co., 126 Pa. 293, 17 A. 607; St. Louis B. & M. Ry. Co. v. Knowles (Tex. Civ. App.), 180 S.W. 1146; Southern Ry. Co. v. New, 105 Ga. 481, 30' S.E. 665; Nashville C. & St. L. R. Co. v. Hembree, 85 Ala. 481, 5 So. 173.)

It must be shown that the failure to ring the bell or to blow the whistle in some measure contributed to the injury. (C. S., sec. 4820; St. Louis B. & M. Co. v. Knowles, supra.)

Under the provisions of C. S., sec. 4820, it is sufficient if either the whistle be blown or the bell be rung. It is not necessary that both be done. (33 Cyc. 668; Kosher Dairy Co. v. New York S. & W. R. Co., 81 N.J.L. 145, 78 A. 1052.)

Whether failure to comply with C. S., sec. 4820, must be proximate cause of injury in order to constitute actionable negligence is one of first impression with this court. (Wheeler v. Oregon-Wash. R. & N. Co., supra; Orcutt v. Pacific Coast Ry. Co., 85 Cal. 291, 24 P. 662.)

Negligence is not actionable unless it is the proximate cause of the injury sought to be redressed. (33 Cyc. 1045, 1046; Antler v. Cox, 27 Idaho 517, 149 P. 731; Southern Ry. Co. v. Crawford, 164 Ala. 178, 51 So. 340; Miner v. McNamara, 81 Conn. 690, 72 A. 138, 21 L. R. A., N. S., 477.)

C. S., sec. 4820, so far as it pertains to an action for damages prosecuted on behalf of an individual, is remedial and not penal. (25 R. C. L. 1079, 1081, 1084, 1086; 36 Cyc. 1180, 1183, 1188, 1189.)

It is error to give an instruction that a violation of the statute makes the defendant liable, without specifying that such liability is contingent upon the injury having been proximately caused by the negligence. (Lawrence v. Southern P. Co., 189 Cal. 434, 208 P. 966.)

Where men or animals by the sense of hearing or the sense of sight are advised of the approach of a train and, regardless thereof, go upon the track, failure to give statutory signals is not the proximate cause of the injury. (33 Cyc. 966; 3 Elliott on Railroads, sec. 1652, p. 520; Elliott v. New York, N.H. & R. Co., 84 Conn. 444, 80 A. 283; Moore v. Seaboard Airline R. Co., 30 Ga.App. 466, 118 S.E. 471; Illinois C. R. Co. v. Dupree, 138 Ky. 459, 128 S.W. 334, 34 L. R. A., N. S., 645; Atlantic & D. Ry. Co. v. Reiger, 95 Va. 418, 28 S.E. 590.)

D. M. Cox, Wm. M. Morgan and E. B. Smith, for Respondent.

The testimony of witnesses, who were in position to have heard a crossing signal if it had been sounded, that they did not hear it, is competent evidence tending to show it was not sounded; and the weight to be given to it is a question for the jury. (Louisville & N. R. Co. v. Molloy's Admx. (Ky.), 107 S.W. 217; Stotler v. Chicago & A. Ry Co., 200 Mo. 107, 98 S.W. 509; Paris & G. N. R. Co. v. Lackey (Tex. Civ. App.), 171 S.W. 540; Northern P. Ry. Co. v. Heaton, 191 F. 24; Grand Trunk Western Ry. Co. v. Reynolds, 175 Ind. 161, 92 N.E. 733, 93 N.E. 850; Thompson v. Los Angeles & S.D. B. Ry. Co., 165 Cal. 748, 134 P. 709; Lucarelli v. Boston Elevated Ry. Co., 213 Mass. 454, 100 N.E. 632; Riley v. Northern Pacific Ry. Co., 36 Mont. 545, 93 P. 948; Russell v. Oregon R. & Nav. Co., 54 Ore. 128, 102 P. 619; Kaufmann v. Chicago, M. & St. P. Ry. Co., 164 Wis. 359, 159 N.W. 552, 1067; Mellon v. Lehigh Valley R. Co., 282 Pa. 39, 127 A. 444; Nashville, C. & St. L....

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