Mabray v. Union Pac. R. Co.

• Decision Date: 09 December 1933
• Docket Number: No. 10165-10169.,10165-10169.
• Citation: 5 F. Supp. 397
• Parties: MABRAY v. UNION PAC. R. CO. SMITH v. SAME. SAUTER v. SAME. COEN v. SAME. JACKSON v. SAME.
• Court: U.S. District Court — District of Colorado

5 F. Supp. 397

MABRAY v. UNION PAC. R. CO.

SMITH v. SAME.

SAUTER v. SAME.

COEN v. SAME.

JACKSON v. SAME.

Nos. 10165-10169.

District Court, D. Colorado.

December 9, 1933.

T. E. Munson, of Sterling, Colo., for plaintiffs.

C. C. Dorsey and E. G. Knowles, both of Denver, Colo., for defendant.

KENNEDY, District Judge (of Wyoming, sitting in the District of Colorado).

In each of the above-entitled causes demurrers were filed by the defendant, and, inasmuch as said causes grew out of the same transaction, to wit, a highway accident, they were consolidated for the purposes of a hearing upon the demurrers. The cases were orally argued and voluminous briefs submitted. They were first filed in the state court and removed to this court upon the petition of the defendant. The plaintiff Mabray was the driver of the automobile in question, and the other four plaintiffs in the separate causes of action were the passengers in the automobile at the time of the accident.

The demurrers challenge the sufficiency of the several complaints to constitute causes of action and therefore require an examination of those pleadings. As all the complaints set up the same substantive facts and rely upon the same alleged acts of negligence they may be considered together, with the exception that the plaintiff Mabray was the driver of the automobile and the other plaintiffs were passengers therein, which distinction will be noted later.

Taking up the Mabray complaint, its contents may be summarized substantially as follows: After pleading the corporate capacity of the defendant as a corporation of the state of Utah, but operating a line of railroad in the state of Colorado, it is alleged that on November 6, 1932, the plaintiff attended a meeting of the Republican Party at which the President of the United States was the principal speaker, and that on the morning of November 7, 1932, he borrowed a car and invited the other respective plaintiffs to ride back with him to their respective homes in Sterling, Colo., which invitation was accepted. The car so borrowed was practically a new one and in perfect condition. The plaintiff had driven a car for approximately twenty years, had a license to drive, and had driven over 150,000 miles and understood in detail all the requirements of handling a car for the safety, not only of himself, but of the passengers riding with him. He and his fellow passengers started home about 3 a. m. on November 7th and traveled upon a street known as Brighton boulevard leading out of the city of Denver, which was one of the main highways to the towns and cities in the north and east portions of the state of Colorado. Brighton boulevard was originally known and designated as Wewatta street, but at the time of the accident was known as Brighton boulevard. While traveling along said Brighton boulevard at the point where it crosses the defendant's tracks, the automobile encountered a freight train operated by the employees of the defendant, which train was the ordinary stock train with cars so constructed that lights from the opposite side of the train would be easily visible to travelers on the other side thereof. The night was dark and the view slightly obscured by reason of snow and sleet, and the highway was an oiled highway, on which lights from cars were impaired and visibility obstructed. Every precaution within the power of the plaintiff to avoid injury was used to prevent a collision with the train, but the railroad company knowing of the conditions existing failed to make any provision to warn the traveling public of the danger which was brought about by the blocking of the main thoroughfare out of the city by the installation of any warnings, by the ringing of bells, by the installation of red lights, or by having present at such crossing a watchman to warn the traveling public of the danger existing. By reason of the alleged negligence, the car which was being driven by plaintiff came in contact with said train, resulting in plaintiff's serious injury. It is further alleged that the Municipal Code of the City of Denver, at section 1645, provides that any one operating a railroad within the corporate limits of the city shall cause to be displayed, at every point or points where a railroad track or tracks cross any street, alley, or other public highway, red signal lights from twilight to daylight, with a designation, among others, of the crossing in question; and again, in section 1650, that a flagman or safety appliances shall be maintained at any other place in said city where the operator may deem proper for the safety of the public, with certain exceptions. In section 1661 it is provided that it shall be the duty of the engineer or other person in charge of any locomotive, on approaching any crossing, to ring the locomotive bell to warn all persons of the approach of such locomotive and to continue to ring such bell until such locomotive and train of cars shall have cleared such crossing. There was no light to warn or signal bell rung, and no flagman was maintained at the time the automobile approached the crossing. The night was dark, sleet and snow obscured the vision of the driver, and the highway was oiled so that the lights upon the automobile did not properly function. By reason of the failure of the defendant to comply with the laws, rules, and regulations of the city and county of Denver, the automobile came in contact with the train, resulting in the injury complained of. It was the custom of the defendant to maintain a flagman at said crossing between twilight and day-light to protect the traveling public from danger, but that upon this particular occasion, at 3 o'clock on the morning of the accident, the flagman abandoned his work and went home, leaving the crossing wholly unprotected. It is again pleaded that the crossing was not protected with a flagman, a bell, or a red light, and, as a result of this alleged neglect upon the part of the defendant, the automobile crashed into the train which was upon the crossing. Then follows in the complaint a description of plaintiff's occupation, earning capacity, together with the injuries suffered by him, which it is not necessary to specifically notice in considering the demurrers.

It is apparent that reliance for the cause of action as to negligence of the defendant is sought to be based upon two grounds: (1) That the defendant at the time of the accident was violating certain specific ordinances of the city of Denver, and (2) that it was negligent in failing to have a watchman on duty at the time.

There seems to be some discrepancy in the complaint in the attempted quotation of the ordinances relied upon, which probably has come about through inadvertence, which quotations in comparison with the authenticated copy of the ordinances seem in some respects to change the import from that attempted to be conveyed by the pleader, and yet it may not be of sufficient importance to take the necessary time to analyze the difference. The substance of the plea attempted to be set up by plaintiff is that under the ordinance certain signals and warnings were required to be set up at the crossing in question. If so, reliance must be made upon the theory that it is covered by an ordinance which prescribed these crossing signals on Wewatta street, which had been changed to Brighton boulevard. There is no suggestion in the complaint as to whether the ordinance was adopted before or after the change of the street name, but the court takes judicial notice of the fact that there was at the time of the accident still a different street in the city of Denver known as Wewatta street. Necessarily we are left in the dark as to whether or not the ordinance as existing applied to Brighton boulevard. Consequently there is a degree of obscurity in the allegations of the petition as to whether the ordinance pleaded applies to the crossing in question.

There is likewise considerable doubt about the sufficiency of the pleading in regard to the maintenance of a flagman at the crossing, inasmuch as it is not alleged that plaintiff relied upon the presence of any flagman, and particularly inasmuch as it is not pleaded as to how the presence of a flagman would have avoided the accident.

However, assuming that the allegations of the complaint are sufficient to import a charge of negligence, we are still confronted with the necessity of examining the circumstances surrounding the accident and the law applicable to discover whether or not even then there is actionable negligence on the part of defendant shown by the pleading. In this examination we meet the rule that a railroad company has a right to occupy a crossing in the operation of its business, but not for an unreasonable or unlawful length of time, and that such obstruction is in itself sufficient notice of danger so that the railroad is not bound to give any further warning. Likewise, after a train has reached the crossing the duty of a flagman ends as to that train, since then the train itself is a sufficient warning.

For the sake of brevity, some excerpts along the line stated are taken from Corpus Juris, the text being well supported by decisions. In 52 C. J. p. 189, the language is as follows: "In general the railroad company owes the duty to the public not to obstruct a crossing unnecessarily or for an unreasonable period, which duty is non-assignable. So a railroad company may be liable for injuries caused by an obstruction where it is erected and maintained without legal authority, or where it amounts to negligence, as where the obstruction causes delay with a resultant collision, or where the railroad company allows its train or cars to remain on the crossing unnecessarily, or for an unreasonable length of time, by reason of which injuries are received by one who attempts, with due care, to cross, or by one who is precluded by the obstruction from attempting to cross. In the event that the railroad company...