Lee v. Missouri Pac. R. Co.

• Decision Date: 29 April 1963
• Docket Number: No. 20151,20151
• Citation: 152 Colo. 179,381 P.2d 35
• Parties: Jerry W. LEE and Richard G. Trusty, Plaintiffs In Error, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, a/k/a Missouri Pacific Railroad, a corporation, a/k/a Missouri Pacific Lines, Lester D. Tuell and J. A. Shope, Defendants in Error.
• Court: Colorado Supreme Court

Page 35

381 P.2d 35

152 Colo. 179

Jerry W. LEE and Richard G. Trusty, Plaintiffs In Error, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, a/k/a

Missouri Pacific Railroad, a corporation, a/k/a

Missouri Pacific Lines, Lester D. Tuell

and J. A. Shope, Defendants in Error.

No. 20151.

Supreme Court of Colorado, En Banc.

April 29, 1963.

John R. Wall, Pueblo, for plaintiffs in error.

Preston & Altman, Pueblo, for defendants in error.

PRINGLE, Justice.

The parties appear here in the same order as in the trial court. We will refer to the plaintiffs in error respectively as Lee and as Trusty or as plaintiffs, and to the defendant in error Missouri Pacific as Missouri Pacific and to the other defendants in error as engineer and fireman or to the defendants in error collectively as defendants. Separate actions by the plaintiffs against defendants were consolidated for trial by order of court. Lee's complaint alleged that defendants so negligently operated one of the Missouri Pacific trains as to cause it to collide with an automobile driven by Lee, resulting in damages to him in the sum of $151,723.30.

Trusty, the surviving husband of Cora Jean Trusty a passenger in the automobile being driven by Lee, alleged in his complaint that the negligent operation of the Missouri Pacific train caused the death of Cora Jean Trusty to the damage of him and of the three children of Cora Jean Trusty in the sum of $25,000.00.

The defendants' answer to each complaint admitted the accident, but denied negligence and alleged as affirmative defenses that the sole cause of the accident was the negligence of both Lee and Cora Jean Trusty or that Lee and Cora Jean Trusty were both contributorily negligent.

Trial was to a jury. Following presentation of plaintiffs' evidence, the trial court directed a verdict for all the defendants against both Lee and Trusty. Judgment having been entered thereon, plaintiffs are here on writ of error.

The evidence presented by plaintiffs was that at 6:35 P.M. on March 1, 1958, Lee was driving his car south on Booth Avenue in Pueblo County. Cora Jean Trusty, a guest of Lee having no right of control over the operation of the vehicle, was seated to Lee's right. Two east-west railroad tracks intersect Booth Avenue, the track of the Missouri Pacific lying to the south of the Santa Fe track and approximately 100 feet therefrom. Booth Avenue between these tracks at the time of the accident was of rock and gravel and in need of repair. The Santa Fe track to the north is approximately six to seven fee higher than the track of the Missouri Pacific. The grade of Booth Avenue is such that one traveling south thereon must necessarily ascend an incline to reach the apex of the Santa Fe track and then immediately descend to the track of the defendant. A driver or passenger of an automobile traveling south cannot see a train on the Missouri Pacific track until the automobile reaches the top of the higher Santa Fe track and begins its descent to the Missouri Pacific track.

The evidence disclosed that Lee was quite familiar with this crossing and the physical conditions surrounding it, as he traversed it practically every day. Lee testified that on the date of the accident as he neared the Santa Fe track in the darkness he slowed his car, looked both ways and then ascended the incline at a speed of 20 to 25 miles per hour with his foot off the gas. As he reached the top of the Santa Fe track, he saw the lights of an oncoming diesel 200 feet to the west. He immediately applied his brakes, but was unable to stop in time to avoid being struck by the train. Lee was unable to state what, if any, sounds Cora Jean made when she saw the oncoming train. If she made any he did not hear her.

The engineer and fireman of the diesel involved in the accident were called as adverse witnesses by the plaintiffs. They testified that the train was proceeding at a speed of 30 miles per hour and had its whistle blowing and its bell ringing as it approached the crossing. Both men were familiar with the nature of the crossing. The engineer stated that it was a 'bad' crossing, and the fireman testified as to the obstructions to the view caused by the elevated Santa Fe track. The engineer sitting on the south side of the locomotive never saw the automobile, while the fireman on the north side first noticed the car when it was 10 to 12 feet from the Missouri Pacific track. Lee and two additional witnesses who were close to the crossing at the time of the collision testified that they had heard neither whistle nor bell sounded by the train. The witnesses stated that they would have heard them had they been sounded. There were no signals or devices present to warn the traveler of an approaching train except the familiar cross-buck signal which gave notice of the crossing.

In approaching the problems presented by this writ of error, we must first determine whether there was sufficient evidence presented by the plaintiffs to make a jury question on the issue of the negligence of the Missouri Pacific and its engineer and fireman. Motions for directed verdict present a question of law and in deciding the motion the court must consider the evidence in the light most favorable to the party against whom the motion is directed; every fact supported by credible evidence must be resolved in his favor and the strongest inferences reasonably deducible from the most favorable evidence should be indulged in his favor. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353; Elliott v. Hill, 148 Colo. 553, 366 P.2d 663.

There was evidence sufficient to support a conclusion by the jury that this was a particularly dangerous crossing and that there were no signals to warn one approaching the crossing that a train which they could not see was approaching. It is true that there is no statute in Colorado requiring a railroad company to maintain a special warning facility at a particularly dangerous crossing; but the rights of the general public and of a railroad company at a crossing of this kind are reciprocal and mutual and it is necessary that reasonable warning be given by a railroad company of the approach of its trains. That which constitutes reasonable warning depends upon the conditions and circumstances at the particular crossing. When all of the facts and circumstances here are considered together, men of reasonable minds might differ as to whether the exercise of ordinary care and prudence required the railroad to install and maintain some special warning signal in view of the character of the crossing here, and thus a jury question on this point was presented. Interstate Motor Lines v. Great Western Ry., 161 F.2d 968 (10th Cir.).

Moreover, there was evidence in the record that the defendants failed to provide even the limited degree of warning which would...