Norton v. Great Northern Ry. Co.
| Decision Date | 18 June 1929 |
| Docket Number | 6290. |
| Citation | 278 P. 521,85 Mont. 270 |
| Parties | NORTON v. GREAT NORTHERN RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Edgar J. Baker Judge.
Action by Alfred B. Norton, as executor of the last will and testament of Henry Burns Norton, deceased, against the Great Northern Railway Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
William Scallon and J. R. Wine, both of Helena, for appellant.
W. L Clift and R. H. Glover, both of Great Falls, and T. B. Weir of Helena, for respondents.
Henry Burns Norton died December 16, 1924, as a result of injuries received when the defendant company's passenger train No. 238, on which Rombough was engineer and Joranger fireman, collided with a street car, operated by the Helena Light & Railway Company between Helena and East Helena, on which Norton was a passenger.
This action was commenced originally against the present defendants and the Helena Light & Railway Company and one Miller, conductor of the street car; the motorman was killed at the time of the collision. In due time issue was joined as to all defendants and a trial had to the court and a jury, which trial resulted in a dismissal as to Miller and a verdict in favor of all other defendants, and a judgment thereon was duly entered. Plaintiff was, however, granted a new trial, and thereafter the plaintiff dismissed as to the Helena Light & Railway Company; from the order granting a new trial these defendants appealed, and on appeal the order was affirmed. Norton v. Great Northern R. Co., 78 Mont. 273, 254 P. 165. In due time the cause was again brought on for trial, and thereon the court directed the jury to return a verdict in favor of defendant Joranger; the case being submitted to the jury on the evidence adduced, and, under the instructions of the court, the jury returned a verdict in favor of the remaining defendants, and thereon judgment was duly entered. Plaintiff has appealed from the judgment; he makes 10 specifications of error, 9 of which challenge the correctness of certain instructions given and the action of the court in refusing to give certain offered instructions; the tenth is that the court erred in denying plaintiff a new trial.
A sufficient synopsis of the pleadings is to be found in the opinion in Norton v. Great Northern R. Co., above. From the record the following facts appear with reasonable certainty:
East Helena lies approximately 5 miles east of Helena; they are connected by two railroads and, at the time of the collision, were connected by an interurban railway line. Helena is situated in mountainous country, but the territory east thereof to and beyond East Helena is rolling prairie. Approaching Helena across this prairie the Great Northern track runs in a straight line at an angle of 11 degrees and 30 minutes north of west. A quarter of a mile east of the corporate limits of Helena a public highway crossed the railway track at grade, and, paralleling the traveled portion thereof, the street car track also crossed the railway track at grade and within the railway fences erected 60 feet apart as the east and west boundaries of the highway. For at least 1,000 feet west of this crossing the street car track paralleled the railway track, but 55 feet distant. The railway company's whistling post for the crossing is approximately a quarter of a mile east thereof; from this post to the crossing and on over the 1,000 feet west there is nothing to obstruct the view from either an engine or a street car approaching the crossing. Both the engineer and the fireman of train No. 238 are old employees of their company and have long been familiar with the crossing and with the fact that, prior to the day of the collision, a street car negotiated it every half hour.
On December 16, 1924, the thermometer registered approximately 30 degrees below zero, with a wind from a generally westerly direction blowing at about 10 miles an hour at the crossing. While there was frost and snow in the air there was a reasonably clear visibility so that objects could be readily seen at a distance of at least a quarter of a mile.
It was the duty of the railway company to cause each locomotive whistle to signal for the crossing on passing the whistling post and to keep its bell ringing from that point until the crossing was reached, and to cause a lookout to be kept ahead during all of that period. As the company could only act through its employees, these duties devolved upon the men in charge of the engine hauling the train. The locomotive whistle is under the control of the engineer and, as the engine drawing train No. 238 was equipped with an automatic bell ringer with the switch thereof placed on the right-hand of the engineer's side of the cab, it was his duty to switch this device on at or near the whistling post and to keep the bell ringing until the crossing was passed. Motormen in charge of street cars were required to bring their cars to a stop to the south of the railway track and to "look and listen" for approaching trains before going upon the crossing.
On December 16, 1924, train No. 238 was about 30 minutes late; this brought it to the crossing at 11:22 or 11:23 a. m. Approaching the crossing, just prior to the time the train reached the crossing, the motorman in charge of the street car in question scraped the frost from the front window from time to time with a piece of metal, thus affording him a view ahead, while all other windows of the car were frosted so that passengers could not see out. Arriving at the usual stopping place, the motorman brought his car to a stop, lowered the front window, immediately closed it and called to the conductor, "Let's go," and set his car in motion; it was stationary but from 4 to 8 seconds.
The train approached the crossing traveling at approximately 30 miles an hour. As the engineer observed the front end of the street car on the crossing he sounded two sharp blasts of the whistle and set the emergency brakes; a collision followed almost immediately. The street car was demolished and the engine derailed, but the train traveled a distance of 609 feet before coming to a stop, due largely to the breaking of air lines which diminished the braking facility of the engine. Several passengers on the street car were killed and others injured; Henry Burns Norton was either instantly killed, as claimed by the defendants, or received injuries from which he died within a very short time, as alleged by the plaintiff.
Plaintiff charges that the collision was due to the negligence of the defendants in failing to sound the crossing signal at all or keep the bell ringing until the crossing was reached; and failing to sound the whistle and ring the bell "at a time or place, or in a manner sufficient in view of all the conditions attendant at said crossing, inclusive of weather conditions, to give timely, or any, warning, of the approach of said train No. 238 to persons who were using, or about to use, said crossing"; failing to run the train at a reasonable rate of speed or to have the engine under proper control; and in failing to keep a lookout as the train approached the crossing.
1. The first specification of error is that the court erred in giving its instruction No. 16, which reads: "You are instructed to return a verdict for the defendant Christopher Joranger." Counsel for plaintiff assert that there was a conflict in the evidence respecting the question as to whether or not this defendant was guilty of negligence as charged, and that his credibility as a witness was rendered questionable by contradictory statements shown, which, in effect, amounted to impeachment of the witness.
The plaintiff alleged that Joranger was negligent in failing to perform his duty in (a) ringing the locomotive bell, and (b) keeping a lookout ahead while the train approached the crossing. The defendants denied that any such duties were imposed upon the fireman. As to (a), the evidence is that, ordinarily, the fireman does not, as of old, ring the bell, but by the testimony of Joranger himself it was shown that in extremely cold weather the bell is likely to freeze in position, when the automatic ringer will not start it in motion; at such times it is the duty of the fireman to start the bell ringing by use of the hand rope which is placed directly over his head when on his seat on the left-hand side of the engine. As to (b), Joranger himself testified that approaching crossings he is "supposed to get on the seat box," and, further, that "it is the fireman's duty when sitting on his seat to look out for cars, automobiles, vehicles, when approaching a crossing and to warn the engineer." With the allegations of the duty of the fireman thus established, we must consider the evidence relative to a breach of such duties and whether, if there is evidence of a breach of duty constituting negligence on the part of the fireman, such negligence was a proximate cause of the collision, in order to solve the question as to whether the court committed reversible error in withdrawing the case from the jury, in so far as Joranger is concerned.
(a) With reference to the ringing of the bell the engineer testified that he started the bell ringing by turning the switch setting the automatic device in motion and knew that the bell was ringing because he saw it ringing. Joranger testified that Joranger had theretofore been examined on this subject at the coroner's inquest, the day after the collision, and again, by deposition, in November, 1925....
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