Northern Pac. Ry. Co. v. Bacon, 8328.

• Decision Date: 26 July 1937
• Docket Number: No. 8328.,8328.
• Citation: 91 F.2d 173
• Parties: NORTHERN PAC. RY. CO. v. BACON.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F.2d 173 (1937)

NORTHERN PAC. RY. CO. v. BACON.^*

No. 8328.

Circuit Court of Appeals, Ninth Circuit.

July 2, 1937.

Rehearing Denied July 26, 1937.

Walker & Walker, of Butte, Mont., and Gunn, Rasch & Hall, of Helena, Mont., for appellant.

H. L. Maury and A. G. Shone, both of Butte, Mont., for appellee.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellee, a citizen of Montana, brought this action against appellant, a Wisconsin corporation, to recover damages alleged to have been caused by appellant's negligence The complaint is in two counts. The first is for $20,250 on account of personal injuries alleged to have been suffered by appellee in a grade-crossing collision. The second is for $1,425 on account of damage alleged to have been caused to appellee's automobile in the same collision. The jury returned a verdict in appellee's favor for $9,000 on the first count and for $394 on the second. Judgment was entered accordingly. This appeal followed.

The facts are, for the most part, not in dispute. Undisputed facts are as follows:

Appellant owns and operates a double track railroad which crosses a public highway at a point about 6 miles from Butte, in Silver Bow county, Mont. The railroad at that point runs approximately north and south. The highway runs approximately east and west, but just beyond the crossing, going east, it curves rather sharply to the north. It is a "black top" oiled highway. A short distance north of the crossing, a "Y," where trains are turned round, is connected by a switch with the west track of appellant's railroad.

Appellant maintains at this crossing automatic signals consisting of two electrically driven wig-wags and an electric bell. The wig-wags are swinging discs suspended over the south edge of the highway about 20 feet from the ground. Each is suspended from the end of a beam projecting horizontally from the upper end of a post. One such post stands about 15 feet east of the east track and the other about 15 feet west of the west track of appellant's railroad. Both are on the south side of and about 3 feet distant from the highway. The post standing east of the east track has attached to it, about 6 feet from the ground, the bell just referred to. It and the wig-wags are so constructed and connected with appellant's tracks that when an engine or car or train of cars on either track comes within 1,000 feet of the crossing, the bell begins to ring and the wig-wags begin to swing with a pendulum-like motion, each displaying in its center a red light. This continues until the rear wheels of the last car have passed 6 feet beyond the crossing. These automatic signals were maintained by appellant, in good order, continuously, for more than a year next preceding October 23, 1935.

On the evening of October 23, 1935, by direction of appellant, a train of seven passenger cars, drawn by a switch engine and manned by a switching crew, was turned round on the "Y" mentioned above and was backed from the "Y" onto the west track of appellant's railroad. Being then headed south, the train proceeded in that direction until the last car had cleared the switch connecting the "Y" with the west track. The train was then stopped to permit a member of the crew to get off, "line up" the switch, and get back on the train. When so stopped, the engine and first car of the train had passed over and were south of the crossing, but the second car was on the crossing, completely blocking it. This occurred about 10:25 o'clock p. m. These passenger cars were of the usual color — black, or practically so. Having no passengers aboard, the cars were not lighted. That is to say, they had no lights inside them. The engine and rear end of the train were properly lighted.

After the train was stopped and while it was standing at the place indicated, appellee, traveling west on the highway, drove his automobile into and against the side of the second car of the train and thereby sustained the injuries to his person and automobile for which recovery is sought in this action.

As to the cause or causes of the collision, the parties disagree. The complaint alleges that appellant was negligent (1) in placing across the highway "a dark and entirely unlighted train of black cars"; (2) in permitting the train to stand on the highway for more than fifteen minutes continuously; (3) in failing "to continuously sound the whistle of the engine attached to the said train, and within one hundred feet of the said crossing"; (4) in permitting the automatic signals above described to be out of order while the train was on the crossing; and (5) in failing, while knowing that the automatic signals were out of order, to place a servant or a light or other signal at or near the crossing to warn travelers on the highway, including appellee, of the dangerous condition then and there existing; and alleges that these negligent acts caused the collision.

Appellant's answer denies that it was negligent in any respect, or that the collision was caused by its negligence or by any of the acts complained of by appellee. As a further defense, the answer alleges that appellee was guilty of contributory negligence, in that, in approaching the crossing, he carelessly and negligently failed to look for cars on appellant's railroad, carelessly and negligently failed to take any precautions to ascertain whether such cars were passing over or standing on the crossing, and carelessly and negligently ran his automobile at an excessive and dangerous rate of speed and at such a rate of speed that he could not stop it within the distance he could see ahead, and that the damage and injuries complained of by appellee were caused by his contributory negligence, as aforesaid.

At the close of all the evidence, appellant moved the court for a directed verdict in its favor, on the ground that appellee had failed to prove any of the acts of negligence charged in the complaint, and on the further ground that the evidence showed that appellee was guilty of contributory negligence, as alleged in the answer. The motion was denied. This ruling was excepted to and is assigned as error.

We consider first the several acts of alleged negligence charged in the complaint.

1. There was no evidence that appellant placed "a dark and entirely unlighted train of black cars" across the highway. The train in question carried front and rear lights, as stated above. The fact that the cars were black and had no lights inside them furnishes no basis for a charge of negligence. Passenger cars are usually black and, when unoccupied, as in this case, are usually unlighted....