Pippy v. Oregon Short Line R. Co

• Citation: 79 Utah 439,11 P.2d 305
• Decision Date: 11 May 1932
• Docket Number: 5067
• Court: Supreme Court of Utah
• Parties: PIPPY v. OREGON SHORT LINE R. CO

11 P.2d 305

79 Utah 439

PIPPY v. OREGON SHORT LINE R. CO

No. 5067

Supreme Court of Utah

May 11, 1932

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

Action by William Pippy against the Oregon Short Line Railroad Company. From a judgment dismissing the action, plaintiff appeals.

REVERSED, and case reinstated and remanded for a new trial.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, and B. L Liberman, of St. Louis, Mo., for appellant.

George H. Smith, R. B. Porter, and W. Hal Farr, all of Salt Lake City, for respondent.

STRAUP J. CHERRY, C. J., and EPHRAIM HANSON, J., concur. FOLLAND, J., ELIAS HANSEN, J. dissenting.

OPINION

STRAUP, J.

This action was brought by the plaintiff and appellant to recover damages for personal injuries. At the conclusion of the plaintiff's evidence a motion for nonsuit was granted on the ground of contributory negligence and the action dismissed. He appeals assigning the ruling as error. By his complaint, so far as here material, he in substance alleged that the accident occurred at a public crossing on Eighth West and Fourteenth North streets in Salt Lake City by a collision of a passenger train operated by the defendant and a Ford motortruck driven by the plaintiff; that at the intersection of the public street or highway the defendant maintained eight parallel railroad tracks running in a northwesterly and southeasterly direction crossing at an acute angle of less than forty-five degrees the street or highway running north and south, the two railway tracks farthest westerly being known as the south-bound and the north-bound main lines upon which passenger trains were operated between Ogden City and Salt Lake City, and that the other six tracks were used as storage and freight tracks upon which railroad cars and trains were stored in such close proximity to the traveled portion of the street and highway as to obstruct the view of trains operated on the main lines, especially of trains operated from the north. Then it is alleged that the defendant, whose duty it was to keep the crossing in repair, negligently suffered and permitted it to be out of repair and portions of the street which was about 66 feet in width to be washed away so that only a space of about 18 feet in width remained on which the public could travel in crossing the intersection, and because thereof and of the obstructions, the crossing was rendered dangerous and unsafe; that for the safety and protection of the public using the crossing, it became the duty of the defendant in the exercise of due care to maintain a watchman or flagman or gates at the crossing to warn travelers of the approach of trains and that the defendant negligently failed to do so; that the defendant maintained an automatic electric bell signal just westerly of the south-bound main line track and close to the street or highway, for the purpose of giving warning of the approach of trains, but that the defendant negligently suffered and permitted the signal bell to be out of repair so that the bell on the day and at the time the plaintiff approached the crossing and attempted to pass over it and at the time of the collision failed to ring or function or give any warning of the approach of trains and particularly of the approach of the train from Ogden from the north on the southbound main line and which struck the plaintiff's truck. It then further is alleged that on the day and at the time in question the defendant negligently stored and maintained, so near the traveled portion of the street or highway at the intersection, cars on the storage or freight tracks as to obstruct the view of one driving over the crossing from the north to the south of trains approaching from the north or northwest, and as the plaintiff was attempting to drive over the crossing from the north to the south, because of the alleged negligence of the defendant and of its further alleged negligence in operating the passenger train from the north on the south-bound main line or track over the crossing at a negligent and dangerous rate of speed at fifty miles an hour and without sounding the whistle or ringing the bell of the engine or giving any warning of the approach of the train, his truck was struck by the train causing the injuries complained of.

The answer in effect was a general denial and a plea of contributory negligence, that the plaintiff "could have seen said approaching train for a long distance from said crossing and for a considerable distance before the said plaintiff reached said crossing and that plaintiff's failure to look and listen for said train before driving upon said crossing was the proximate and sole cause of said collision and of plaintiff's injury."

Upon these issues the case was tried to the court and a jury resulting in the granting of a nonsuit at the close of plaintiff's evidence. No point is made as to insufficiency of the evidence to show the alleged negligence of the defendant. The ruling of the court is defended solely on the ground of contributory negligence. There is evidence to show the alleged condition of the crossing, the obstruction of the view of approaching trains, the absence of a watchman and of gates to warn travelers of the approach, that the signal bell did not ring at the time in question, that the train as it approached and passed over the crossing was operated at a speed of from fifty to sixty miles an hour, and after it struck the truck did not stop until it ran a distance of about three city blocks, about 1,980 feet, that the whistle was not sounded nor the bell rung of the locomotive as the train approached the crossing, and that no warning was given of its approach. Evidence was also given to show that about 900 feet north of the crossing the railroad tracks curved in a northerly or northeasterly direction, which prevented a view of trains from such direction beyond that point. At the crossing planks about 18 feet long were placed between the rails of the various tracks, the rails extending above the planks. The space between the tracks was filled in with gravel and cinders. The length of the planking constituted the width of the traveled portion of the crossing, which was rough and bumpy and in bad condition; that one ordinarily could drive over the crossing with a motor vehicle only in low gear, and because of the acute angle made by the railroad tracks running diagonally across the highway, one driving over the tracks was required to drive "zigzag" over them, and the rails being higher than the roadbed considerable care was required in driving "else you might shoot down the track and the steering wheel thrown out of your hands."

The plaintiff was familiar with the crossing, having driven over it at different times before in going to and from his work; his residence being north and east and his place of work south and west of the crossing. On the day in question, the plaintiff with three others in going to work on a Ford motor truck approached the crossing on Eighth West street from the north driving south at about 8 o'clock in the morning. The weather conditions were good and practically clear. The plaintiff was driving the truck, seated on the left-hand side at the wheel. On the seat with him and to his right was a Mr. Bergstrom, who was killed. On the back part of the truck were Mr. Hagberg, and his stepson Mr. Moon, about twenty years of age. The plaintiff testified that as they approached the crossing, the first track reached by them was what is called the oil track running to oil works. The next five tracks are referred to as storage and freight tracks, then the northbound main line track, and then the southbound main line, the most westerly track. The plaintiff testified that when they approached the oil track and before entering upon it he looked and listened for trains but heard and saw none, that because of box cars on four of the freight and storage tracks next to the northbound main line his view was obstructed on the main line to his right or to the north or northwest; that he had a view of the main line only in front of him and of the signal bell which was westerly of and near the south-bound main line and near the traveled portion of the street or highway; that he listened for the signal bell, but it was not ringing; "that it did not ring at any time that we passed over the intersection and up until the time the automobile (the truck) was struck." He testified that as he was passing over the intersection he looked and listened as he passed over each track but could not see to the north and northwest because of box cars on four of the freight or storage tracks next to the main line, and which extended out in the street about 20 or 25 feet from the center of the planking; that when he passed over the last freight track immediately next to the north-bound main line, he looked for trains, first to his left then to his right, and saw no train coming either way; that he was traveling between five and six miles an hour in low gear; that he was not aware of the approach of the train until his companion sitting to his right exclaimed, "My God, a train," at which instant the truck was struck by the train, rendering the plaintiff unconscious; and that he remained so for eleven days thereafter. When the train was stopped the plaintiff and his companion were found unconscious on the pilot of the engine. His companion died shortly thereafter.

The plaintiff further testified that in going over the crossing he looked for cars, looked where he was driving, and watched the stationary signal bell; that there were cars also on the freight tracks to the southeast of the crossing, but he could not tell how close they were to the crossing and that there was as...