McIntire v. Oregon Short Line Railroad Co.

Decision Date21 February 1936
Docket Number6270
Citation55 P.2d 148,56 Idaho 392
PartiesE. A. MCINTIRE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

RAILROADS-CROSSING ACCIDENT-NEGLIGENCE - LAST CLEAR CHANCE DOCTRINE - CONTRIBUTORY NEGLIGENCE-EVIDENCE-RES GESTAE-STATEMENT OF ENGINEER-WITNESSES-REFRESHING MEMORY.

1. On railroad's appeal after verdict for motorist who alleged that trainmen sounded neither whistle nor bell, Supreme Court must assume, notwithstanding conflicting evidence, that no whistle or bell was sounded.

2. Last clear chance doctrine presupposes that defendant perceived plaintiff's peril when defendant could have avoided accident and when plaintiff could not.

3. Giving instruction authorizing motorist's recovery if trainmen had last clear chance to and could have stopped train before striking automobile held error, where train could not have been stopped after trainmen could have perceived motorist's inability to stop.

4. Trainmen seeing automobile approaching need not stop train or slow up for crossing where motorist has time to stop and nothing indicates his intention to continue.

5. Reconcilement of conflicting evidence held for jury.

6. Contributory negligence becomes question of law only when evidence is undisputed or when only one inference can be drawn therefrom.

7. Contributory negligence of motorist involved in collision at grade crossing held for jury on conflicting evidence as to point of unobstructed view and position of locomotive when motorist allegedly looked for trains.

8. Statement of engineer that he could have stopped if glove had not caught when he reached for brake held admissible as part of res gestae on issue whether anything else might have been done, short of stopping train to avoid striking automobile.

9. Substance of statement made to engineer immediately before collision by brakeman who saw automobile approaching crossing held admissible.

10. Offer of typewritten statement for purpose of refreshing witness' recollection held properly rejected, in absence of showing that witness needed to refresh his memory.

APPEAL from the District Court of the Eleventh Judicial District for Minidoka County. Hon. Adam B. Barclay, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Reversed and remanded for new trial.

Reversed and remanded for a new trial. Costs to appellant.

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

It is the duty of one operating an automobile and approaching a railroad crossing to drive his automobile at such a rate of speed and under such control that he can stop it after arriving at a point where he can see an approaching train and before arriving at the track on which it is operated, and his failure to so operate his automobile constitutes negligence as a matter of law barring right of recovery. (Lewis v. Union P. R. R. Co., 118 Neb. 705, 226 N.W. 318, 320; 22 Ruling Case Law, 1018, 1019; Puhr v. Chicago & N.W. Ry. Co., 171 Wis. 154, 176 N.W. 767, 14 A. L. R. 1334; Rogers v. Chicago, R. I. & P. Ry. Co., 8 C. C. A., 39 F.2d 601, 603.)

Prior self-contradictions, when admitted, are not to be treated as assertions having any substantive or independent testimonial value, and do not tend to establish the truth of the matters contained therein. (2 Wigmore on Evidence, sec. 1080; State v. Bush, 50 Idaho 166, 295 P. 432.)

The railroad company has the right to assume that the traveling public will look for passing trains, and that having looked and listened, they will discover the oncoming train and clear the track. (Burrow v. Idaho & W. N. R. Co., 24 Idaho 652, 135 P. 838, 840.)

Where a traveler approaching a railroad crossing possesses equal opportunity with those operating the engine to avoid a collision until it is too late for the operatives of the engine to apply the brakes and prevent injury to the traveler driving onto the track in front of the approaching engine in plain view, the doctrine of last clear chance does not apply. (Miller v. Northern Pacific Ry. Co., 105 Wash. 645, 178 P. 808; Mouso v. Bellingham & N. Ry. Co., 106 Wash. 299, 179 P. 848; Hartley v. Lasater, 96 Wash. 407, 165 P. 106.)

The court did not err in refusing to permit the witness Warner to refresh his memory from Defendant's Exhibit 10, for no foundation was laid for permitting the witness to refresh his recollection. (People v. Noone, 132 Cal.App. 89, 22 P.2d 284; People v. Creeks, 141 Cal. 529, 75 P. 101; People v. Izlar, 8 Cal.App. 600, 97 P. 685.)

The exhibit was not written by him or under his direction at the time the facts occurred or immediately thereafter, or at any other time. (I. C. A., sec. 16-1204; State v. Ramirez, 33 Idaho 803, 199 P. 376.)

S. T. Lowe, for Respondent.

The failure of the defendant to ring the bell or sound the whistle at least 80 rods from the place where the railroad crosses any street, road or highway, and to keep such bell or whistle ringing or sounding until the locomotive has crossed such street, road or highway, is negligence per se. (Sec. 60-412, I. C. A.; Smith v. Oregon Short Line R. R. Co., 32 Idaho 695, 187 P. 539; Smith v. Oregon Short Line R. R. Co., 47 Idaho 604, 277 P. 520.)

Where the evidence on material facts is conflicting or where on undisputed facts reasonable and fair-minded men may differ in the inference and as to conclusions to be drawn or where different conclusions might reasonably be reached, by different minds, the question of negligence is one of fact to be submitted to the jury. (Branson v. Northern P. R. Co., 55 Idaho 220, 41 P.2d 629; Miller v. Gooding Highway Dist., 55 Idaho 258, 41 P.2d 625; Denton v. City of Twin Falls, 54 Idaho 35, 28 P.2d 202; Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222.)

The court did not err in instructing the jury on the last clear chance, for the burden of establishing contributory negligence as the proximate cause always rests upon the defendant. (Kelly v. Troy Laundry Co., supra; Graves v. Great Northern Ry. Co., 30 Idaho 542, 166 P. 571; Hard v. Spokane International R. Co., 41 Idaho 285, 238 P. 891.)

Recovery under the last clear chance doctrine is authorized by the pleadings where the complaint alleges the negligence of the defendant, the answer denies it and alleges the accident was caused by the plaintiff's negligence. (Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; Mosso v. Stanton, 75 Wash. 220, 134 P. 941, L. R. A. 1916A, 943; Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 L. R. A. 289.)

GIVENS, C. J. Budge, Morgan, Holden and Ailshie, JJ., concur.

OPINION

GIVENS, C. J.

Respondent 's automobile, in which he was driving across appellant's main line tracks at Heyburn, was struck by the engine of a freight train, practically demolishing the car, throwing respondent out of it, and severely injuring him, for which he recovered damages in this action.

For the purposes of this discussion we may consider that appellant's tracks run east and west at the place of the accident. The road upon which respondent approached the track led from the north and west, and approximately 40 feet north of the track after dipping down through a slight depression turned to the south and crossed the track at right angles. Five hundred and seventy-six feet west of the crossing is appellant's Heyburn depot. Between the crossing and the depot and on the north side of the track parallel thereto there is an embankment of dirt somewhat overgrown with weeds, with its highest elevation about four and one-half feet, 300 feet east of the depot, which would be 276 feet west of the crossing.

Respondent testified he stopped his car north of the track at about where the crossing warning sign is located, which he estimated to be about six paces or 18 feet from the track, that he looked to the left and right and saw no train, that his vision was obscured to the right by the dirt embankment referred to above and the depot, and that he heard no whistle or bell (parenthetically one of the grounds of alleged negligence was that no whistle was blown or bell rung; evidence was given both ways, but by the jury's verdict we must approach the problem with the premise that no whistle was blown or bell rung). Respondent then put his automobile in low gear and after his automobile had rolled back about six feet started across the tracks at about one mile per hour, at which speed he would progress about one and a half feet per second. While respondent's testimony is slightly contradictory and conflicting, a fair inference is that he meant to state that he continued to look both ways and saw nothing until he was on the track, when he saw the engine approaching rapidly on his right, and so close that he could not back up and avoid it, and therefore gave his car "the gas" and attempted to rush across out of the way, that the right rear portion of his automobile was struck by the engine, and that he knew no more for some time thereafter.

Appellant takes the position that if respondent's vision was obscured by the embankment and the depot or either the embankment or depot at the point he stopped, he should have looked when in a place of safety and when his vision was not obscured, and that either he did not look from such vantage point, because if he did he would have seen the oncoming train, or that if he did so look he did not see it, but is charged with knowledge of what he could and should have seen.

Lundy the front brakeman on the train, testified he was riding in the cab of the engine on the left-hand side and that when the engine was 300 or 350 feet west of the crossing he saw respondent about 200 feet north of the crossing approaching at a speed of 15 miles per hour, and that respondent did not stop, that when he saw respondent was apparently going to attempt...

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