Ranstrom v. Oregon Short Line R. Co.

• Decision Date: 30 December 1936
• Docket Number: No. 975.,975.
• Citation: 18 F. Supp. 256
• Parties: RANSTROM v. OREGON SHORT LINE R. CO. et al.
• Court: U.S. District Court — District of Idaho

18 F. Supp. 256

RANSTROM v. OREGON SHORT LINE R. CO. et al.

No. 975.

District Court, D. Idaho, E. D.

December 30, 1936.

Anderson, Bowen & Anderson, of Pocatello, Idaho, for plaintiff.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson, of Pocatello, Idaho, for defendants.

CAVANAH, District Judge.

This case presents the question by demurrer as to whether the complaint states facts sufficient to constitute negligence of the defendant in operating its train over a crossing on a foggy night without providing a flagman or warning lights at its railroad crossing where it crosses Maple street in the village of Alameda, Bannock county, Idaho.

The material facts alleged by the complaint are substantially these: The defendant Oregon Short Line Railroad Company, until January 1, 1936, owned and operated a railroad which runs out of the City of Pocatello, Idaho, in various directions; there were and are two lines of railroad running immediately out of the City of Pocatello, in a northerly direction, one of which runs along and parallel to the main highway, being United States Highway 91, while the other line running north takes off of the line running west or north of the City of Pocatello, and then reconnects with the line running along the highway to the north of the City of Pocatello, and was used almost entirely for the running of trains from Pocatello to Butte, Mont., while the line running parallel to the highway was not used. The line paralleling the highway was a stretch of track or line not used for the active operations of trains, which was known to and understood by the plaintiff prior to November 14, 1935. On the line paralleling the highway there is and was a crossing at Maple street in the village of Alameda, which street runs in generally an easterly and westerly direction, the crossing is much used by the village, and the houses and residences therein located are situated on both sides of the tracks paralleling the highway, and those living in the village crossed and recrossed the railroad frequently, and in the vicinity of the crossing it is thickly settled and populated. About 12 o'clock midnight on the 14th of November, 1935, plaintiff was traveling and riding in a certain automobile owned by A. L. Ranstrom and driven and operated by Francis Ranstrom, and was at that time going in a generally easterly direction on Maple street in the village, and west of the railroad on the highway; at that time and place there was an extremely thick, heavy, obscure and blinding fog at and in the vicinity of the crossing; the fog was of such character and so thick that human vision could not penetrate it for more than 5 feet away, except to see a light, and at that time and place the defendant Oregon Short Line was operating a train across the frequently used crossing and, notwithstanding the fog and the fact that it obscured the vision, the Oregon Short Line Railroad Company did not have any person at the crossing with a light or any other means notifying the traveling public of the presence of a train upon the frequently used crossing and, by reason of the frequent use of the crossing and the existence of the fog, the crossing while a train was being operated across it was dangerous and extremely hazardous to any person traveling in a motor vehicle upon Maple street. The crossing at the time and place was not marked or protected by any warning signs of its presence, and it has only one post on the easterly side of the track with a cross-arm thereon with the words "railroad crossing" on the cross-arm and on the westerly side of the track there was no warning sign whatsoever; the cross-arm on the easterly side of the track is completely obscured when trains or cars are upon the crossing and the crossing sign there is old, weather-beaten, dim, obscure, dilapidated, broken, and part thereof removed and gone; the train upon the crossing was traveling in a northerly direction from the City of Pocatello toward Butte and was in charge of and under the control of the defendant McCormick as conductor; the defendants were under the duty to the traveling public, and particularly to the plaintiff, to guard, flag, or otherwise protect the crossing by reason of the frequent use of the track at it, and the frequent use made of Maple street crossing by persons living in Alameda and in the vicinity of the crossing. In colliding with the train, the automobile was whirled, twisted, and turned around in the vicinity of the Maple street crossing when different cars of the train collided with and struck the automobile, which movement of the automobile continued until the whole of the train had passed the crossing; that, had the defendants guarded the crossing and exercised reasonable care at the time and place in passing over the crossing, a flagman or watchman would have been stationed there and the train could have been stopped before all of the cars had collided with the automobile.

It is further alleged that defendant company was negligent in not protecting the crossing by adequate and lawful warning signs and in not providing a watchman or some person with a light at the crossing to warn oncoming traffic at the time and place and in not causing the crossing to be guarded by some member of the train crew or other flagman and in not stopping the train immediately after the collision and before the automobile had been knocked, torn, and twisted, as could have been done by exercise of ordinary care; the train crew consisted of the defendant McCormick, who was in charge of the train, an engineer, fireman, and three brakemen; the plaintiff was a citizen and resident of the State of Idaho and resident in the vicinity of the crossing and about six blocks from it; the automobile in which plaintiff was riding and traveling, by reason of the failure to have a flagman to guard, or other person to warn the approaching traffic at the time and place, and of the heavy, thick, and blinding fog, and the failure of the defendant company to properly guard the crossing by warning signs, collided with the train and then and there inflicted upon the plaintiff painful, extreme, and permanent injuries as alleged. Then follows the allegation as to the nature and character of the alleged injuries to plaintiff and which is alleged were proximately caused by the negligence of the defendant.

It will be observed from the complaint that the plaintiff resided in the vicinity of the crossing where the accident occurred and knew of its existence, and that from one to two trains passed over it each twenty-four hours; that he crossed and recrossed it frequently, and about 12 o'clock midnight on November 14, 1935, he was riding in an automobile owned by A. L. Ranstrom and driven by Francis Ranstrom on Maple street in the village of Alameda, and at the time of the accident there was an extremely thick, heavy, obscure and blinding fog, which was of such character and so thick that human vision could not penetrate it for more than 5 feet away. The automobile collided with the train which was passing over the crossing. Under those circumstances, plaintiff asserts that it was defendant company's duty to have, at the crossing, a light or flagman to warn the traveling public of oncoming trains, and its failure to do so was the proximate cause of the injury.

There are certain principles which apply and define the duties of a driver of an automobile and his guests and a railroad company, when a collision occurs at a crossing, where an accident occurs, and, first, as to the railroad company; if the crossing is more than ordinarily hazardous, it must maintain such facilities as to warn the traveling public of oncoming trains, and as to the driver of an automobile the primary and general rule is that he should exercise ordinary care when in approaching a railroad crossing and to keep a lookout to discover an approaching train, and the guest or passenger is also to keep a lookout to discover an approaching train and in some way to warn the driver in time for the avoidance of an accident.

With these principles in mind we approach the consideration of their application to the facts as disclosed by the complaint. Attention has not been called to any statute or ordinance requiring defendant company to have a light or flagman at the crossing. This question was before this court in the case of Walton v. Oregon Short Line Railroad Company and the Ninth Circuit Court of Appeals in affirming the judgment, 50 F.(2d) 352, 353, held that, in the absence of any statutory direction of keeping a flagman or gates at the crossing, it must first be shown that such crossing is more than ordinarily hazardous, and that no duty there existed to maintain a wigwag or automatic signal or flagman specifically employed to guard the crossing under the situation there, which is not the same as in the present case. The court there...