Polly v. Oregon Short Line Railroad Co.
| Decision Date | 19 December 1931 |
| Docket Number | 5723 |
| Citation | 51 Idaho 453,6 P.2d 478 |
| Parties | J. A. POLLY, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, and D. H. SIMPSON, Respondents |
| Court | Idaho Supreme Court |
RAILROAD CROSSING-PERSONAL INJURY-CONTRIBUTORY NEGLIGENCE-"DIVERTED ATTENTION."
Truck driver approaching crossing who, when in position to see train, looked but saw nothing held contributorily negligent as matter of law.
APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. Ed. L. Bryan, Judge.
Action for damages for personal injuries. Judgment for defendants. Affirmed.
Judgment affirmed; costs to respondents. Petition for rehearing denied.
Wm. M Morgan and George Donart, for Appellant.
It is the duty of one about to cross a railroad track to look and listen, but it is not negligence per se to fail to stop, and if the facts are such that reasonable and prudent men might disagree as to negligence, then the question of negligence becomes a question of fact to be submitted to a jury. (Graves v. Northern P. R. Co., 30 Idaho 542, 166 P 571; Pietrofitta v. Southern P. Co., 107 Cal.App 575, 290 P. 597; Ogburn v. Atchison, T. & S. F. R. Co., 110 Cal.App. 587, 294 P. 491.)
Whether a person was negligent in failing to observe the approach of a train by which he is injured, while his attention is directed to other trains, cars or engines, as a source of danger, is a question of fact for the determination of a jury from all the circumstances attending the case. (Kirby v. Southern P. Co., 108 Ore. 290, 216 P. 735; Flannelly v. Delaware & H. Co., 225 U.S. 597, 32 S.Ct. 783, 56 L.Ed. 1221; Chicago & A. R. Co. v. Pearson, 184 Ill. 386, 56 N.E. 633; Lake Shore etc. R. Co. v. Johnson, 135 Ill. 641, 26 N.E. 510; Newton v. Oregon Short Line R. Co., 43 Utah 219, 134 P. 567; Davidson v. Lake Shore etc. R. Co., 171 Pa. 522, 33 A. 86; Philbrook v. Aroostook Valley R. Co., 119 Me. 599, 111 A. 479.)
George H. Smith, H. B. Thompson and L. H. Anderson, for Respondent.
A traveler at a highway crossing may not claim the benefit of the "sudden peril" or "diverted attention" rule where his own conduct has caused or contributed to creating such peril. (Elliott on Railroads, 3d ed., sec. 1669; Stillman v. St. Louis S. F. R. Co., (Mo. App.) 266 S.W. 1005; Fogg v. New York N. H. & H. R. Co., 223 Mass. 444, 111 N.E. 960; Langham v. Chicago, R. I. & P. R. Co., 201 Iowa 897, 208 N.W. 356; Briscoe v. Southern R. Co., 103 Ga. 224, 28 S.E. 638.)
Appellant, with three of his children was driving in a Ford truck in an easterly direction across the most easterly of four north and south tracks of respondent railroad in Ontario, Oregon, at about 5 o'clock P. M., September 27, 1929, when the truck was struck by a freight train running from north to south, the truck demolished and appellant seriously injured.
This action is for damages to the truck and appellant's person. A nonsuit was granted on the ground that the evidence showed appellant was guilty of contributory negligence. Appellant contends that his contributory negligence if any, was negatived because of diverted attention.
The accompanying plat, an exhibit in the case, enables us to visualize the situation.
[SEE PLAT IN ORIGINAL] As appellant approached from the west, his vision to the north was obscured as to trains approaching on the main or east track, on which the accident occurred, until he had passed east of the second track from the west, on which there were box-cars, some 71 feet from the center of the roadway on which he was traveling east. When he passed this second track, he said he could see to the north for from several hundred to a thousand feet.
Taking appellant's analysis of the distances and relative speeds of the truck and train, we find this: When appellant, by his own statement, had a clear vision to the north, for from several hundred to a thousand feet, he was about 50 feet from the center of the fatal track, traveling at the minimum, or slowest rate fixed by himself, of 12 miles, or 17 feet per second; hence, it took him three seconds to reach the point of encounter. The train approached at a maximum rate, as placed by appellant's own witnesses, of 40 miles an hour, or, as analyzed by his attorney, at 58 feet per second. Thus with three seconds for both truck and train to go to meet, from the time and point when appellant had a clear view in the direction from which the train came, and when he testified he looked, and saw nothing, he was 50 feet at least, from the point of contact, and he said he could stop at the rate of speed he was going, in from 10 to 15 feet. The engine which hit him, was three seconds away, or at 58 feet per second, 174 feet; clearly within his range of vision in the daylight, and no obstruction between, when, according to his own statement, he could have stopped clear of the track on which the accident occurred. Appellant contends, however, that his attention was diverted by exercising care in looking to the right, because he heard escaping steam in that direction, and looked there for a train; that such circumstance excused his failure to see the train approaching from the left. If his attention was thus diverted, there are authorities which support his point of law, that a question of fact was presented for the jury. (Kirby v. Southern P. Co., 108 Ore. 290, 216 P. 735; Chicago & A. R. Co. v. Pearson, 184 Ill. 386, 56 N.E. 633; Newton v. Oregon Short Line. R. Co., 43 Utah 219, 134 P. 567; Davidson v. Lake Shore etc. R. Co., 171 Pa. 522, 33 A. 86; Butterfield v. Chicago, R. I. & P. R. Co., 193 Iowa 323, 185 N.W. 151; Deland v. Michigan R. Co., 213 Mich. 22, 180 N.W. 389; Hutchinson v. St. Paul etc. R. Co., 32 Minn. 398, 21 N.W. 212; Jennings v. St. Louis etc. R. Co., 112 Mo. 268, 20 S.W. 490, 491.)
Appellant is, however, confronted with a non sequitur, for this reason: Appellant's own testimony, and appellant's analysis of the rule applicable, show that his attention was not diverted at a time when he was in a position to see if he looked, and when appellant says he looked, but did not see. As appellant says in his brief, page 20:
"Of course, if after crossing the track (second from west) upon which the box cars were stationed he had again looked sharply and instantly to his left he would have discovered the train."
And this is exactly what appellant says he did.
He testified as follows on direct examination, questioned by...
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