Nuttall v. Denver & R. G. W. R. Co.
| Decision Date | 19 February 1940 |
| Docket Number | 6140 |
| Citation | 99 P.2d 15,98 Utah 383 |
| Parties | NUTTALL et al. v. DENVER & R. G. W. R. CO. et al |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; Roger I. McDonough, Judge.
Action by Ida Nuttall and others, sole heirs at law of Quentin Glenn Nuttall, deceased, against the Denver & Rio Grand Western Railroad Company, and another, to recover damages for the alleged wrongful death of deceased as the result of a collision between an automobile and a train. From a judgment dismissing the action, plaintiffs appeal.
Affirmed.
McCullough & Ashton, of Salt Lake City, for appellants.
Van Cott, Riter & Farnsworth, of Salt Lake City, for respondents.
McDONOUGH, J. being disqualified, did not participate.
Quentin Glenn Nuttall was fatally injured as the result of an automobile-train collision within the corporate limits of Salt Lake City during the early morning hours of February 21, 1935. Appellants commenced this action as the surviving heirs at law of the deceased against respondents to recover damages for the alleged wrongful death of the husband and father. Upon the conclusion of the taking of evidence the trial court granted respondents' motion for a directed verdict and caused to be entered up a judgment of dismissal of the action. Appellants appeal.
Respondent has interposed a motion to dismiss the appeal on several grounds, but an examination of the record has convinced this court that appellants are entitled to have this action determined on its merits. The motion to dismiss is, therefore, denied.
The ultimate question to be determined is whether or not there is sufficient evidence in the record of the alleged contributory negligence of the deceased to justify the trial court in directing a verdict.
The undisputed facts are: that the accident took place at 8th South and 4th West Streets with the deceased traveling west and the train moving south; that the deceased was familiar with this particular intersection having driven over it at night several times each week for some time; that the visibility was poor due to the mist and rain; that the usual railroad crossing signs were in position at this intersection; that the train in question was required to come to a complete stop at 9th South before proceeding across the main line tracks of the Union Pacific Railroad; that the streets in question were 132 feet wide and the blocks 660 feet long; that a 350 watt street arc light was burning at the south-east portion of the intersection; that the train in question was being operated on tracks situated along the west side of said 4th West Street.
The complaint alleges that defendant failed to ring the bell or sound the whistle as required by law and that the train was being operated just prior to the collision at a rate of speed in excess of the 12 mile an hour fixed by city ordinance. Evidence was presented in support of such allegations.
We shall now proceed to examine the testimony given by appellants' (plaintiffs') own witnesses relating to the alleged contributory negligence of the deceased, in order to determine whether or not the deceased used that degree of care required of him as he approached the crossing in question.
Edward F. Gini was the first witness. He testified that a person driving west on 8th South would ordinarily have an unobstructed view to the depot at 3d South where the train in question started, from a point 70 or 80 feet east of the railroad tracks. Also, that there were places east of this point where a traveler could see, beyond a house and other obstructions to the view situated on the northeast corner of the intersection, toward the railroad track in question northerly and over to 4th West Street.
Clarence Giaque was the next witness. He was employed at a place of business one block south from the intersection in question at the time of the accident. He heard the impact, and saw the headlight burning on the engine where it had come to a stop 240 feet south of 8th South Street. The deceased's car was then on the cow catcher facing west. It was raining at that time and the atmosphere just a little misty. He further testified that the direct flare of the locomotive headlight extended about 150 feet.
Larry Makomel testified that he saw the collision from a point near 471 West 8th South (said point being at a greater distance from the approaching locomotive than was the deceased as he approached the intersection). The witness saw what appeared to be a little spot light suspended over where the tracks would be just as the deceased passed the east side-walk of 4th West, "it was the train, of course, coming south and I saw a little spot of light and pretty soon I saw it again just like something coming right through the smoke clouds, there was fog and rain, it just came right through it, once an open light, great big light at once, about 25 feet north of the point of impact--yes, that spot light drawed my attention, I knew there was a train coming." The witness could see the tail light on deceased's car, the light from the car's headlights after the accident pointing westerly, as well at the cab lights on the engine from where he stood after it had been brought to a stop. He further testified that deceased was traveling about 10 miles per hour while the train was doing about 30 or 35 miles per hour as it came out of the fog.
Don Alexander, the next witness, was in the middle of 4th West Street on the north side of 9th South when he first saw the engine headlight which was then about a block and a half or two blocks away from him. He then walked back to the sidewalk and started north on 4th West Street. He was walking north in a somewhat hesitant manner when he heard the crash. He saw the tail light on deceased's car burning at that moment. The train's headlight at the moment of impact looked like a large candle light suspended in the air with no rays coming from the light. The visibility was poor.
Sid Spencer was plaintiffs' last witness on this subject. He testified that it was extremely dark and very difficult to see far ahead in the vicinity of the accident shortly after the collision. That it was foggy and misty.
Appellants, in their brief, concede that two of their witnesses testified to seeing a light on the track a few moments before the collision but insist that the mere fact that the deceased could have seen that light does not establish contributory negligence, as a matter of law, and that even though deceased had believed that the approaching light was a train, he may still have acted as a reasonable and prudent man in attempting to cross the tracks. Or, to state it another way, it is maintained that even though the sole inference to be drawn from the evidence is to the effect that the deceased could and should have seen the headlight of the approaching train as others did, yet that he should not be charged with contributory negligence as a matter of law because said deceased had the right to assume that the train was proceeding at a lawful rate when he determined to cross in front of it. The following cases are cited in support of this contention: Grand Trunk Western Railway Co. v. Reynolds, 175 Ind. 161, 92 N.E. 733, 93 N.E. 850; New York Central R. R. v. DeLeury, 100 Ind.App. 140, 192 N.E. 125; Baker v. Baltimore & O. S.W. R. Co., 61 Ind.App. 454, 112 N.E. 27; Cleveland, C., C. & St. L. R. Co. v. Lynn, 171 Ind. 589, 85 N.E. 999, 86 N.E. 1017; Payne v. Vise, 84 Ind.App. 1, 135 N.E. 585; Pittsburgh, C., C. & St. L. R. R. Co. v. Dove, 184 Ind. 447, 111 N.E. 609; Texas & N. O. R. Co. v. Harrington, Tex. Com. App., 235 S.W. 188; St. Louis, etc., R. Co. v. Whitfield, 155 Ark. 560, 245 S.W. 323.
In each of the cited Indiana cases there was a general verdict together with special interrogatories, and the appeal appears to have been taken either from an order denying or granting a judgment, notwithstanding the general verdict. These cases are distinguishable from the case at bar on both the law and the facts. In determining the questions presented the appellate tribunal took the view that it was bound as to the facts by the answers submitted by the jury to the special interrogatories in considering whether said answers were consistent with the general verdict....
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