Landers v. Atchison, T. & S. F. Ry. Co.

• Court: New Mexico Supreme Court
• Writing for the Court: B. G. Johnson, Albuquerque; NOBLE; COMPTON, C. J., and CHAVEZ
• Citation: Landers v. Atchison, T. & S. F. Ry. Co., 359 P.2d 522, 68 N.M. 130, 1961 NMSC 17 (N.M. 1961)
• Decision Date: 14 February 1961
• Docket Number: No. 6734,6734
• Parties: James D. LANDERS, Plaintiff-Appellee, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, M. C. Beene, J. L. Jones, J. L. Westover, W. M. Holder and H. A. Haragan, Defendants-Appellants, Fireman's Fund Indemnity Company and State Automobile and Casualty Underwriters, Plaintiffs in Intervention.

Page 522

359 P.2d 522

68 N.M. 130

James D. LANDERS, Plaintiff-Appellee, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, M. C. Beene, J L. Jones, J. L. Westover, W. M. Holder and H. A Haragan, Defendants-Appellants Fireman's Fund Indemnity Company and State Automobile and Casualty Underwriters, Plaintiffs in Intervention.

No. 6734.

Supreme Court of New Mexico.

Feb. 14, 1961.

B. G. Johnson, Albuquerque, J. T. Paulantis, Albuquerque, R. G. Cooper, Albuquerque, for appellants.

Harris & Cathey, Roswell, Harvey Markley, Lovington, for plaintiff-appellee.

Brown & Brainerd, Roswell, Atwood & Malone, Roswell, for intervenors-appellees.

NOBLE, Justice.

This appeal results from a judgment based upon a jury verdict awarding appellee damages of $75,000 for personal injuries received in a collision between the truck operated by appellee and a railway engine of Atchison, T. & S. F. Ry. Co. The judgment was against the railway company and its employees who were operating the engine. Fireman's Fund Indemnity Co. and State Automobile and Casualty Underwriters appear as intervenors by reason of having paid benefits to appellee under the Workmen's Compensation Act, 1953 Comp. Sec. 59-10-1 et seq., as an insurer of appellee's employer.

The collision occurred in Roswell, New Mexico, where the main line of appellants' railroad is crossed by McGaffey Street. The railroad tracks at this point run in a north and south direction and consist of the main line on the east side of the right-of-way and two side tracks. McGaffey Street runs east-west and is a two lane, paved street.

Appellee drove a semi-truck and trailer loaded with 58,000 pounds of sand and approached the crossing driving south on Atkinson Street, which is parallel to the railroad tracks, and turned right onto McGaffey Street. He stopped about 10 or 15 feet from the first track--the main line. The signal device which shows a flashing light and rings a bell when a train is approaching was not operating. The windows of the truck were rolled down. Appellee's vision was unobstructed except slightly by some signal boxes and a telephone pole to the south. After stopping, looking and listening and having neither heard nor seen a train, he put his truck into law gear and started slowly across the tracks at a speed of two to three miles per hour. He did not again look for an approaching train and first saw and heard the engine when the cab of his truck was astride the track. The truck was struck slightly behind the cab.

The engine was being used as a switch engine on the day of the accident and had no cars attached to it. The engine was backing at the time and proceeding at a speed of from 30 to 38 miles per hour. The engineer's seat, being on the left side of the cab, resulted in the operator, M. C. Beene, having no view to the east from which appellee was approaching. The engine was being operated by the fireman under the supervision of the engineer who was seated on the right side and could see to the east. Crew members having a view to the east saw appellee's truck approaching at a slow rate of speed. The engine brakes were applied almost simultaneously with the impact and it was brought to a stop some 600 feet up the track. There is no dispute as to the extent of the injuries received by appellee.

Appellants ground their first attack upon the denial of a motion for a directed verdict under the doctrine of Baltimore & Ohio Ry. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645, or what is commonly called the 'Pennsylvania Rule' which places an affirmative duty on one who crosses railroad tracks not only to 'stop, look, and listen' but to continue vigilant to a point beyond peril or be regarded negligent as a matter of law. That doctrine was, in effect, applied in Morehead v. Atchison, T. & S. F. Ry. Co., 27 N.M. 349, 201 P. 1048, in an open crossing case. See also Atchison, T. & S. F. Ry. Co. v. Herbold, 10 Cir., 169 F.2d 12. However, in Russell v. Davis, 38 N.M. 533, 37 P.2d 536, we said, in a case involving a highway intersection accident, that the standard of conduct of one approaching an intersection is the same as that of one approaching a railroad crossing and is the care and conduct of a prudent person under the circumstances. That the appellee Landers did not see the engine by which his truck was struck until too late to avoid the accident is urged as proof that he failed in the exercise of this duty.

The decisions applying the 'Pennsylvania Rule' are, for the most part, based upon accidents occurring at 'open crossings' where no signal or warning device was used by the railroad company. A less stringent rule is applied by the majority of the decisions where signal or warning devices have been installed and maintained by the raiload company to warn the traveling public of the approach of trains. This rule is that where warning devices have been installed at a railroad crossing a traveler is not entirely relieved from his duty to look and listen for an approaching train, but, nevertheless, where such signal is silent, he may rely to some extent on the apparent safety implied from the silence of the signal, and such silence of the signal is a circumstance to be taken into consideration along with all other factors on the issue of contributory negligence. 99 A.L.R. 733.

In the case of a guarded crossing no precise rule can be stated as to the quantum of care required of the traveler in all cases or under all circumstances. The test is whether the traveler exercised that degree of care which a reasonable person would have exercised under the circumstances, and where the traveler exercised some care it is a question of fact for the jury to determine, not one of law for the court. Toschi v. Christian, 24 Cal.2d 354, 149 P.2d 848; Spendlove v. Pacific Electric Ry. Co., 30 Cal.2d 632, 184 P.2d 873; Ogburn v. Atchison, T. & S. F. Ry. Co., 110 Cal.App. 587, 294 P. 491; Annotation 99 A.L.R. 733 and cases collected. That the failure of a warning signal to operate lessens the imperative duty of the traveler to stop, look and listen and is even the practical equivalent of an invitation to cross is recognized in Wabash Ry. Co. v. Walczak, 6 Cir., 49 F.2d 763.

Appellants foresaw the applicability of the above rules and earnestly contend that this case is not governed by the guarded crossing rule but comes within the strict 'Pennsylvania Rule', it being urged that because appellee did stop, look, and listen before proceeding across the tracks, he did not rely on the warning device, and that the effect is, therefore, the same as if there had been no warning device.

The testimony was that appellee had crossed those tracks several times each day and was familiar with the crossing; knew of the signal or warning device; saw no warning light and heard no bell as he arrived at the crossing; that he looked in both directions and saw no approaching train nor did he hear any bell or whistle. He stopped about 15 feet short of the first track and then proceeded across at two to three miles per hour.

While there is no direct testimony of appellee that he did rely on the warning device, that 'In looking he may have acted automatically from force of habit and looked less carefully because of reliance on the warning device.', was held in Spendlove v. Pacific Electric Ry. Co., supra [30 Cal.2d 632, 184 P.2d 875], to require submission of the issue to the jury. It was held that the court could not say as a matter of law that under such circumstances the traveler was contributorily negligent. The testimony of appellee that he was familiar with the signal device and that he heard no warning bell and saw no light warrants a reasonable inference that he relied to some extent on the warning device. Lindekugel v. Spokane, P. & S. Ry. Co., 149 Or. 634, 42 P.2d 907, 99 A.L.R. 721.

In considering the motion for a directed verdict the court must view the evidence most favorable to appellee, including all reasonable inferences to be drawn from it and must disregard all unfavorable testimony and inferences. It is only where there is no fact for the jury to pass upon or where the court, in the exercise of its sound discretion, would be required to set aside a verdict if favorable to one side rather than to the other, that the court should direct a verdict. Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225. We entertain no doubt that the record before us presents a factual question for the jury to determine as to whether appellee was contributorily negligent.

The witness J. D. Taylor, a Captain in the Air Force stationed at Walker Air Force Base near Roswell, was permitted to testify as an expert over the objection of appellants. His duties in the Air Force were in the field of engineering and safety and he had investigated and reconstructed some fifty-four automobile accidents. The Captain had no previous experience or training concerning accidents involving a railroad engine. The background for his testimony was acquired by some independent investigation in the way of measurements at the collision site and of the vehicles involved. In addition he had read the accident reports of the investigating officers and was propounded certain hypothetical questions based partly upon testimony of other witnesses, in part upon his own measurements and in part upon answers to interrogatories. To this information, and knowledge he had acquired from automobile accident manuals and safety schools, he applied mathematical calculations and laws of physics.

We have said that whether a witness is shown to be qualified to testify as an expert is a question largely within the discretion of the trial court, in the first instance, State v. Deming, 66 N.M. 175, 344 P.2d 481; Reid v. Brown, 56 N.M. 65, 240 P.2d 213; Bunton v. Hull, 51 N.M. 5, 177 P.2d 168, and that determination will not be disturbed by an appellate court unless the ruling is manifestly wrong or the trial court has...