Ralph v. Union Pac. R. Co.

• Citation: 351 P.2d 464,82 Idaho 240
• Decision Date: 23 March 1960
• Docket Number: No. 8778,8778
• Parties: Alfonzo RALPH and Beatrice Ralph, husband and wife, Plaintiffs-Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and W. E. Gaffner and Victor Hill, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 464

351 P.2d 464

82 Idaho 240

Alfonzo RALPH and Beatrice Ralph, husband and wife, Plaintiffs-Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and W. E. Gaffner and Victor Hill, Defendants-Respondents.

No. 8778.

Supreme Court of Idaho.

March 23, 1960.

Rehearing Denied May 10, 1960.

Kramer & Walker, Twin Falls, for appellants.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson, E. C. Phoenix and D. A. Bybee, Pocatello, for respondents.

SMITH, Justice.

Plaintiffs, appellants, instituted this action to recover general and special damages arising from a collision between appellants' automobile operated by Beatrice Ralph and a train of respondent railroad company. The accident occurred about 1:15 o'clock a. m., October 18, 1957, at a crossing approximately seven and one-half miles southwest of Twin Falls, on U. S. Highway 93.

At the conclusion of the evidence the trial court denied defendants', respondents', motion for a directed verdict. The cause having been submitted, the jury returned a verdict of $10,000 in favor of appellants. The court entered judgment accordingly.

Subsequently, respondents moved for judgment notwithstanding the verdict, which the court granted December 31, 1958, thereby vacating the judgment previously entered upon the verdict. Appellants then moved for an order vacating the judgment notwithstanding the verdict, which the court denied. Appellants have appealed from the judgment notwithstanding the verdict and from the order denying their motion to vacate such judgment.

Appellants assign as errors the trial court's entry of the judgment notwithstanding the verdict, and the order denying appellants' motion to vacate the judgment, in each instance without supporting findings of fact and conclusions of law.

A motion for judgment notwithstanding the verdict is a delayed motion for a directed verdict; such motion affords the trial court opportunity to correct its previous refusal to grant a motion for a directed verdict, if erroneous. I.C. § 10-224; Peterson v. Bannock County, 61 Idaho 419, 102 P.2d 647. 'When a directed verdict is had findings of fact and conclusions of law are not necessary.' Farm Credit Corporation v. Rigby Nat. Bank, 49 Idaho 444, 290 P. 211, 214. Clearly, the identical procedure applies to a judgment notwithstanding the verdict, particularly where, as here, the judgment does not grant affirmative relief. Hanson v. Roesch, 104 Wash. 257, 176 P. 349. Appellants' assignments of error in the premises are without merit.

Appellants, by further assignment, urge the insufficiency of the evidence to support the judgment notwithstanding the verdict. This assignment requires a review of the evidence in its aspects most favorable to appellants, particularly as developed in their case in chief. Hobbs v. Union Pacific R. Co., 62 Idaho 58, 108 P.2d 841.

The grounds of respondents' motion for judgment notwithstanding the verdict are: that there is no evidence to support the allegations of negligence on respondents' part; that even if there is evidence of any such negligence, there is no evidence that the same constituted the sole proximate cause of Mrs. Ralph's injuries; that there is no evidence justifying the application of the last clear chance doctrine; and lastly, the evidence is sufficient to show that negligence on the part of Mrs. Ralph proximately caused or proximately contributed in a substantial degree to her injuries.

U. S. Highway 93 extends north and south and the railroad crosses it at an angle extended northeasterly and southwesterly. Highway 74 branches off Highway 93 at a point about 340 feet south of the crossing and extends northeasterly, parallel to the railroad. The 'Y' intersection of the two highways is about 25~ to 30~. An automobile can be driven without swerving from its driver's own lane from Highway 93 onto Highway 74 at speeds of 60 miles or more.

About 1,200 feet south of the crossing there is a circular warning railroad 'X' sign on the east side of the highway; about halfway between that sign and the crossing there is a railroad 'R X R' sign painted in large letters on the pavement, and about 550 feet south of the crossing there is still another circular railroad warning sign; also at the crossing near the railroad, both at the right-hand side of the highway extending north, and the left-hand side of the highway extending south, are railroad 'cross-buck' signs. The headlights of a car 'would pick up those signs' because they are coated with luminous or reflectorized paint which causes the signs to stand out and be seen as far as an automobile headlights will carry--perhaps 500 feet ahead in the high beams.

There is a small clump of four trees on the east side of Highway 74 at a point some 350 feet south of the crossing which would only momentarily obstruct a motorist's view of an approaching train at various points, but not beyond the 350 feet south of the crossing.

Appellants produced a bus driver, familiar with the route. He testified that a train's headlights, seen to the east, might be confused with those of a motor vehicle when the lights and the traveler were quite far apart, the traveler going north; but that the nearer the motorist gets to Highway 74 the easier it is to distinguish a train's headlights; that as one approaches the intersection of Highways 93 and 74 (some 340 feet south of the crossing), the train's headlights are higher than and easily distinguishable from an auto's headlights; that the train's headlights are very bright and shine onto Highway 93 and the fields at the west; that there are no houses in the vicinity to obstruct a motorist's view.

The bus driver's further testimony has to do with the question whether respondents sounded a whistle or bell prior to entry upon the crossing. The witness stated that the early morning of the accident he was driving a bus north on Highway 93, when he slowed the bus to about 40 miles an hour, pulled to the right side of the highway and blinked for appellants' car to pass, which it did; that then he increased the speed of the bus to 50 and 55 miles per hour; that appellants' car, driven north toward the crossing, forged ahead of the bus three-fourths of a mile to a mile; that he did not see the train approaching the crossing; that he was traveling inside a closed bus, did not hear the sound of a bell or whistle, was not listening for any such sound, did not see the accident, and that he was 'at least a mile' from the crossing; that the night though dark was clear, the terrain was flat and the view unobstructed.

Appellants produced for cross-examination under I.C. § 9-1206, respondent Hill, the railroad fireman. He testified as to the occurrence of the accident; that he first observed appellants' automobile approaching from the south at an estimated distance of about half a mile from the crossing; that the train then was between 1,250 and 1,600 feet (referring to known points on the railroad) from the crossing, traveling southwesterly at a speed between 30 to 35 miles per hour; that it did not appear to Hill that the approaching automobile would fail to slow down, or to turn northeasterly onto Highway 74 at a point about 340 feet south of the crossing; that appellant Mrs. Ralph did not reduce the speed of the automobile as she approached the crossing.

There is no direct evidence of the speed at which appellants' automobile approached the crossing; however, the automobile and the train reached the crossing at the same time, although the automobile, after Hill first observed it, traveled approximately twice the distance to the crossing, as did the train; nor was there any evidence of skid marks on the highway south of the crossing to indicate that Mrs. Ralph applied the brakes of the car prior to the accident.

The evidence also shows that the view of a traveler, approaching the crossing from the south, is clear; the terrain is flat and affords, for a mile to the south of the crossing, an unobstructed view of an approaching train; that Mrs. Ralph traveled this highway and traversed the particular crossing at sundry times before the night of the accident and had crossed it again a few hours prior to the time of the accident.

Appellants, contending that the judgment notwithstanding the verdict was erroneously entered, assert that respondents were guilty of negligence; whereas respondents assert the correctness of such judgment, inasmuch as Mrs. Ralph's negligence defeated recovery to appellants.

The question of negligence may be one of law or law and fact. The rule is stated in Wheeler v. Oregon R. & Navigation Co., 16 Idaho 375, 102 P. 347, 353, as follows:

'If from the evidence different minds of responsible and prudent men might come to different conclusions, as to whether there was negligence, then the question is one of fact to be submitted to the jury under proper instructions; but, if only one conclusion is deducible from the facts, then the question becomes purely a question of law.'

In considering the question whether respondents sounded a bell or whistle in approaching the crossing, we are quite aware of the negative aspect of the testimony of appellants' witness, the bus driver, and of the positive testimony of respondents' witness, the railroad fireman, adduced as if under cross-examination by appellants, I.C. § 9-1206. Negative evidence is entitled to consideration unless it 'is so destitute of probative value that it will not be received.' Kerby v. Oregon Short Line R. Co., 45 Idaho 636, 264 P. 377, 380. The application of this rule shows the inherent weakness of the testimony of the bus driver; his testimony does not negate nor render improbable the fact that respondents sounded the train whistle in approaching the crossing, simply because he, the bus driver, was not in a position to hear the whistle, being in the closed cab of his bus and at least a mile distant from the train as it approached the crossing.

We must assume facts...