Milk House Cheese Corp. v. Chicago, B. & Q. R. Co.

• Decision Date: 16 December 1955
• Docket Number: No. 33783,33783
• Citation: 73 N.W.2d 679,161 Neb. 451
• Court: Nebraska Supreme Court
• Parties: MILK HOUSE CHEESE CORPORATION, a Corporation, Appellant, v. CHICAGO, BURLINGTON & QUINCY R. CO., a Corporation, Appellee.

Page 679

73 N.W.2d 679

161 Neb. 451

MILK HOUSE CHEESE CORPORATION, a Corporation, Appellant, v. CHICAGO, BURLINGTON & QUINCY R. CO., a Corporation, Appellee.

No. 33783.

Supreme Court of Nebraska.

Dec. 16, 1955.

Syllabus by the Court.

1. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.

3. If the operator of a motor vehicle is familiar with a railroad crossing and the surrounding conditions, it is his duty in approaching it to look and listen at a time and place where looking and listening will be effective even though vision of the railroad track is restricted.

4. It is the duty of the driver of a motor vehicle to have it under such control that when he arrives at a place while traveling toward a railroad crossing where it is possible to see and to hear an approaching train he can stop and avoid a collision with it.

5. It is the duty of a traveler on a highway, when approaching a railroad crossing, to look and listen for the approach of trains. He must look, where, by looking, he could see, and listen, where, by listening, he could hear, and if he fails without a reasonable excuse to exercise such precautions, then he is guilty of contributory negligence more than slight, as a matter of law, and no recovery can be had for damages resulting from a collision with a passing train.

6. Generally, a person who drives a motor vehicle on a railroad track at a highway crossing in front of an approaching train, which he could have seen, had he looked, or could have heard, had he listened, is in law guilty of contributory negligence, and cannot recover damages from the railroad company.

7. Railroad companies may provide lights and gates at crossings for the protection of those crossing, but their presence does not excuse one passing who fails to exercise precaution for his own safety.

8. Neither open gates nor failure of the railroad company to give signals at a railroad crossing relieves one about to cross the tracks from the duty to use due care to look and listen for an approaching train.

Baylor, Evnen & Baylor, Warren K. Urbom, Lincoln, for appellant.

Jean B. Cain, Joseph C. Reavis, Falls City, J. W. Weingarten, W. P. Loomis, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law brought by the Milk House Cheese Corporation, plaintiff, against the Chicago, Burlington & Quincy Railroad Company, a corporation, defendant, in the district court for Richardson County to recover damages to plaintiff's 1951 International L-200 tractor and a 1950 Trailmobile trailer hereinafter referred to as plaintiff's truck, or truck, or trailer, as occasion requires, in a collision between such truck and a train owned and operated by defendant. The case proceeded to trial before a jury. At the conclusion of all of the evidence the defendant moved for a directed verdict for the reason that the evidence was insufficient on which to base a cause of action against the defendant, and for the further reason that the evidence showed plaintiff's driver to be guilty of contributory negligence such as to bar any recovery against the defendant as a matter of law. The trial court sustained the motion. From the overruling of the motion for new trial filed by the plaintiff, the plaintiff appeals.

Insofar as necessary to consider here, the plaintiff's petition alleged damages to plaintiff's truck proximately resulting from negligence on the part of the defendant. We summarize the charges of negligence as follows: The defendant was negligent in failing to keep a proper lookout, to see plaintiff's truck, to stop the train, slacken its speed, or otherwise avoid the collision; in failing to have its locomotive under reasonable control; in running the train at a greater speed than was reasonable and proper under the existing conditions; in failing to ring a bell or sound a whistle between a point 80 rods from the crossing to the crossing as a warning of an approaching train; in failing to have the headlight on the locomotive operating; and in failing to have the automatic signals and gates at the crossing constructed and operating so as to give warning of the approach of the train on the passing track.

The defendant's answer denied the allegations of negligence set forth in the plaintiff's petition, and alleged that the collision was caused by the negligence of the driver of plaintiff's truck who could and should have seen the approaching train in time to have avoided the collision with it, but who failed to properly look and listen for approaching trains, failed to see and hear the train, failed to have his truck under proper control, and failed to stop the truck or avoid a collision, but drove the truck onto the track immediately in front of the train; and that the negligence of the plaintiff was more than slight in comparison with any negligence on the part of the defendant.

The defendant filed a cross-petition which was dismissed.

The plaintiff's reply to defendant's answer in effect denied the affirmative allegations of negligence contained in the defendant's answer.

The established rule is that: "A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence." McIntosh v. Union P. R. Co., 146 Neb. 844, 22 N.W.2d 179 181. See, also, Loudy v. Union P. R. Co, 146 Neb. 676, 21 N.W.2d 431, 433.

In addition to the foregoing rule, it is necessary to bear in mind that: 'Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.' Loudy v. Union P. R. Co., supra.

The record shows that U. S. Highway No. 75 runs north and south across the defendant's railroad tracks through Dawson, Nebraska. It is paved with concrete, 21 feet in width, and is practically level from some distance north of the defendant's railroad crossing and across the same. The defendant's tracks run east and west through Dawson. The main line track is the north track. The track about 10 feet south of the main line track is the passing track. The third track, approximately 40 feet south of the south rail of the passing track, is the industry track. The east end of the depot is 80 feet west of the west edge of Highway No. 75, and there is an outhouse 180 feet west of the west edge of the highway. There is a yellow railroad crossing sign on the highway approximately 400 feet north of the north rail of the main line.

The defendant, with the approval of the Department of Roads and Irrigation and the Bureau of Public Roads of the federal government, constructed a crossing signal at Dawson consisting of automatic gates and lights, that is, a flashing-light signal with a short arm gate for southbound traffic on the north side of the main line about 15 feet west of the highway and about the same distance north of the north rail of the main line. There is also the same type of signal 15 feet south of the industry track and about the same distance east of the east edge of the pavement of the highway. When a train is on the main line approaching the crossing it operates the signal circuit of the crossing equipment. These approach circuits on the main line are governed by the speed of the train so as to operate the signals at a sufficient time in advance of the arrival of a train at the crossing, and continue to operate until the train reaches or is at the opposite side of the crossing when the signal automatically shuts off. The distance at which a train on the main line actuates the signals is about 1,810 feet. On the passing track, siding, or industry track a center section only is placed at such points as Dawson, and the same type of signal is used throughout the defendant's railroad system. The reason for this is because there are considerable switching movements, trains are broken up on these tracks, and they sit for long periods of time and at various times, which is not the case on the main line. Movements on switch tracks are slow. If there was an approach section on the passing track at Dawson the gates would be down all the time that trains were switching.

The plaintiff owned and operated a 1951 model L-200 International tractor and a 1950 Trailmobile trailer. At the time of the collision, at about 2 p.m., on March 7, 1952, this unit was driven by its employee James H. Moore. The truck was in first-class condition. The length of the tractor and trailer was 44 feet 10 inches. There were six wheels on the tractor and eight on the trailer. The weight of the tractor was about 9,500 to 10,000 pounds. The trailer weighed 11,000 pounds. The gross weight of the cargo of cheese was 33,800 pounds.

The locomotive was silver in color, trimmed in red, and approximately 70 feet in length. The total length of the engine and five cars attached thereto was approximately 400 feet, or a little more.

The crossing signals met all the rules and regulations that govern the same, and there was no change in this...