Padilla v. Atchison

• Decision Date: 08 December 1911
• Citation: 16 N.M. 576,120 P. 724
• Court: New Mexico Supreme Court
• Parties: DE PADILLAv.ATCHISON, T. & S. F. RY. CO.

16 N.M. 576

120 P. 724

DE PADILLA

v.ATCHISON, T. & S. F. RY. CO.

Supreme Court of the Territory of New Mexico.

Dec. 8, 1911.

Appeal from District Court, Valencia County; before Justice Mechem.

Action by Valentina Chavez de Padilla against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Examination of instructions discloses that court in its instructions given both as to the burden of proving contributory negligence and as to the presumption that due care and caution was exercised by deceased in approaching railroad crossing, fully and fairly expressed law applicable.

This is an appeal from a judgment for $5,000 recovered against the appellant in the district court of Valencia county by the appellee as the sole surviving parent of Antonio Padilla, deceased. The complaint is in the usual from, charging that Antonio Padilla, deceased, was killed by a locomotive operated by the appellant company. The accident occurred at a public crossing near the town of Los Chaves in Valencia county, N. M. The plaintiff in the lower court and her son Antonio had lived all their lives in a small settlement some two miles south from the railway crossing where the accident occurred. There is no direct testimony in the record to the effect that Antonio Padilla had any familiarity with the Los Chaves crossing, where the accident happened, prior to the day of this occurrence. The evidence in the case established the following facts: At a point 42 feet south from the crossing is a cattle guard. At a point 205 feet from the center of the crossing, a contra acequia crosses the line of railway at right angles and at a grade even with the roadbed. At a point 1,144 feet south from the crossing another road crossed the railway, and at a point 1,320 feet south of the Los Chaves crossing there was established a regulation whistling post for the Los Chaves crossing. South of the crossing and west of and parallel to the railway a right of way fence extended from the wing fence at the crossing to a point 418 feet south, at which point the fence closed in toward the railway track to a point within 9 1/2 feet of the center of the track and from this point (418 feet south of the crossing) a hedge fence inclosing an orchard paralleled the west side of the track south for several hundred feet, at a distance of 9 1/2 feet from the center track. Between the crossing and said 418-foot point south, on the west side of the railway (being the northeast corner of the hedge fence and orchard), there were at the time in question a number of cottonwood trees in full foliage, several trunks 18, 20, and 22 inches in diameter, all between the right of way fence on the west and the railway tracks; and the branches of these trees extended at places to within 12 feet from center of the track and within 30 feet of the track, and all of these trees were within 306 feet south of the crossing. Weeds, bushes, and sunflowers were growing within the right of way on the west side of the railway and on the banks of the contra acequia which crossed the railway at the 205-foot point, to a height of “little more or less than the height of a man, 2, 3, or 4 feet high.” By actual measurement a warehouse stood, its north end 56 1/2 feet, and its south end 58 feet, from the center of the track on the south side of the highway as one approached the crossing from the west. Following the highway southwesterly from this warehouse, the next house from the highway crossing was the residence of the witness Jose F. Padilla, a distance of 35 or 40 yards from said warehouse, and between the walls of these two houses said witness had a truck garden and sweet corn growing at the time in question. Between these two buildings and at a point about 60 yards from the crossing the road bends to the south. About 10 feet south of Padilla's residence is another house, and south of this last house are corrals and other buildings. Looking east from the rear of the residence of Padilla toward the track, there were many trees between it and the track and crossing. Antonio met in collision at the crossing in question a light passenger locomotive of the defendant company, which was moving northward at at least the conceded rate of about 30 miles an hour at the point of collision. This locomotive was manned by an engineer and a fireman. The engineer had been operating a passenger locomotive between Albuquerque and Clovis since 1906, and over the crossing in question on every trip. The fireman was a green hand and had been working for the company defendant as a fireman for about a month, on the run from Belen to Albuquerque. When about a mile out of Belen, the engineman stopped the locomotive for about five minutes to pack a hot box. The engineman could not bring the locomotive to a stop until he had reached a point five telegraph poles beyond the point of collision, and eight telegraph poles from the point of shutting off steam and application of the emergency breaks. Telegraph poles are about 40 yards apart. The engine struck the wagon at front wheel, the horses lurched and jumped over the track to the east side, tore the wagon from the horses, and the team ran to the right side. The impact threw the wagon 30 or 40 feet beyond the crossing, inside the right of way fence and north of the cattle guard on the north side of the crossing and inside the board fence (wing fence) about 15 yards. The boy and part of the wagon were thrown on the pilot and carried to the point where the locomotive was brought to a stop.

The principal error assigned by the appellant involving, as it does, a question of fact, necessitates the setting out at length of all the testimony relating to the forward movement of the deceased toward the crossing just prior to the time of the accident. Six eyewitnesses testified thereto for the appellee, and two for the appellant. Jose de la Cruz Salas for the appellee testified: “Q. Did you see the locomotive that struck Antonio, the engine? A. Yes. Q. When did you first see it? A. At the time that he reached the track, I turned around and saw it. Q. Had you seen the engine before that time? A. No. Q. State whether or not you heard the whistle or the bell prior to the time Antonio was struck? A. At the time I saw him she whistled and rang the bell. Q. How close was it to Antonio at that time? A. Something like 30 yards. Q. And where was Antonio at that time? A. At the track. Q. How was the engine running, at what speed; fast or slow? A. Somewhat fast. Q. What was Antonio doing when you looked around? A. When I looked around, he raised from the seat and raised the whip to strike the horses. Q. Did you see the locomotive strike him? A. Yes. Q. Did you see Antonio after that? A. No, I did not see him only at the time he was struck by the engine.”

Ramona Gabaldon for the appellee testified: “Q. Where were you with reference to this crossing when you saw Antonio Padilla? A. I was getting to the main road, and he was right in front of me. Q. From what direction were you coming? A. I was coming from the north down. Q. And in what direction was Antonio Padilla going when you saw him? A. He was going to get across the track and was going down when he met me and said, ‘Good morning,’ and he went up the track when the engine struck him. Q. How far from the track were you when you met him? A. About-I was about 15 or 20 yards from him when the engine killed him. Q. State whether or not you heard or seen the engine prior to the time it struck Padilla? A. I did not see it. Q. Had you heard it? A. No. Q. State whether or not the engine whistled or rang the bell or gave any alarm prior to the time it struck Antonio Padilla? A. No, I did not hear anything until I saw the engine strike the wagon and raised him up. Q. And when did you first see the locomotive or engine? A. When it struck the boy and killed him. I did not see it before. Q. And when did you first hear it make any sound? A. When it struck the wagon and boy and raised them. Q. How is your hearing? A. Well. Q. How is your eyesight? A. Well. Q. When you saw the engine, was it running fast or slow? A. At the time it struck the boy, it kind of stopped, but kept on going. Q. How long did it go before it stopped? A. About 200 yards more or less. I do not know exactly. Q. Were there any cars attached to the engine? A. Not any; it was an engine alone. Q. He turned around and spoke to you and said, ‘Good morning’? A. Yes. Q. Faced to the north, did he, faced you? A. Yes, he saw me and said ‘Good morning.’ Q. Were the horses walking or trotting? A. They were walking when he said, ‘Good morning.’ Q. Did he keep right on up to the track until they were struck? A. Yes, when he was on the track the engine arrived. Q. You noticed him all the way from the time he spoke to you until he reached the track, did you? A. I saw him when he was killed. Q. How far had you gone from the time he spoke to you until he was struck? A. How far had he walked? Q. Yes. A. I remained standing for a long while there. Q. In the middle of the road? A. I was just going out into the road. Q. You had not crossed the road at the time the accident happened? A. No, I had not crossed the road. Q. You are absolutely certain he kept on going up the track after he spoke to you, are you, Mrs. Gabaldon? A. Yes. Q. Did you hear the whistle blow or the bell ring at the time the boy was struck? A. Before, at the time it struck the boy on the wagon, I heard it. Q. You heard the bell ring, too, did you? A. When he was struck, yes; I heard the bell ring too. Q. How far was it from where you were standing when you heard the bell ring? From the track-how far were you from the track when you heard them? A. Didn't I tell you about 15 or 20 yards? Q. When you met Antonio, in which direction were you going? A. I was going down. Q. And which direction was Antonio going? A. Antonio was getting into the track towards where the...