Rau v. Northern P. Ry. Co.
| Decision Date | 12 June 1930 |
| Docket Number | 6583. |
| Parties | RAU v. NORTHERN PAC. RY. CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Action by Alex Rau, as administrator of the estate of August Harry Rau, deceased, against the Northern Pacific Railway Company and another. From a judgment of dismissal, plaintiff appeals.
Affirmed.
H. A Tyvand, of Butte, and Albert Anderson, of Billings, for appellant.
Johnston Coleman & Jameson, of Billings, and Gunn, Rasch, Hall & Gunn, of Helena, for respondents.
This action was instituted by the plaintiff as the administrator of the estate of August Harry Rau, deceased, to recover the sum of $50,000 for the decedent's estate because of the injury and resulting death of August Harry Rau on September 10, 1928, by reason of the defendant company's alleged negligence in the operation of its trains across a public highway, "at a point about one mile easterly from the city of Billings." By answer, the defendants pleaded the contributory negligence of the decedent. Issue was joined by reply and the case was regularly brought on for trial before a jury. At the conclusion of the evidence offered by the plaintiff, the defendants moved the court for a nonsuit which was sustained, and judgment accordingly entered dismissing the action. A motion for a new trial was made by the plaintiff, which was by the court denied, and the plaintiff has appealed from the judgment. The only question involved is whether the court erred in taking the case from the jury and granting a nonsuit.
It is alleged by the plaintiff in his complaint, and by the defendants admitted, that on or about the 10th day of September, 1928, the defendant company owned and was in possession of two railroad tracks extending easterly from the city of Billings side by side, commonly called double tracks; that there was a public highway extending in a general easterly direction from the city of Billings, which crossed the double tracks of the railroad company in a northerly and southerly direction; that on the date mentioned August Harry Rau was traveling in an automobile along the highway, outside the corporate limits of any incorporated city or town, in a westerly direction towards the city of Billings; and as he reached the railroad crossing a freight train was moving easterly along the southerly railroad track; that when the deceased reached the crossing he brought the automobile he was driving to a full stop between ten and one hundred feet from where the highway intersects the railroad tracks; that when the freight train had passed over the crossing the deceased started to drive the automobile along the highway across the railroad tracks; and that as he reached the northerly track, and was crossing the same, he was struck by a locomotive attached to a train of passenger cars belonging to the defendant company, going westerly along the northerly track across the highway, as a result of which the deceased was severely injured, from which injuries he died. It is by the plaintiff further alleged, although denied by the defendants; that such passenger train was at the time and place being run at "a dangerous rate of speed, to wit, in excess of forty miles per hour"; that the defendants "carelessly and negligently permitted and caused said locomotive and passenger cars to approach and pass over said highway and railroad crossing without causing the whistle of said locomotive to be sounded at a point between fifty (50) and eighty (80) rods from said highway and railroad crossing, and carelessly failed to cause the bell of said locomotive to be rung from said point between fifty (50) and eighty (80) rods from said highway and railroad crossing until the said highway and railroad crossing was reached; and the said defendants carelessly and negligently failed to or at all, at any time before passing over said crossing, blow the whistle or ring the bell on said locomotive, and carelessly and negligently failed to give any warning or signal of any kind of the approach of said locomotive; and the said defendants did then and there carelessly and negligently run said locomotive against and collide with the automobile in which said August Harry Rau was riding and the said August Harry Rau, and thereby inflicted grievous injuries upon him, from which injuries he soon thereafter died on or about the 10th day of September, 1928."
By way of affirmative defense, the defendants allege in their answer: "That as the deceased August Harry Rau approached said double tracks from the south there was an east bound freight train passing over said crossing on the southerly track, which train, while so passing, obstructed the view of said Rau towards the east of any west bound train that might be approaching on the northerly track, and also interfered with his ability to hear any train approaching west on the northerly track; that as the east bound freight train passed over said crossing the said Rau ran his automobile up within ten or fifteen feet of the southerly track and immediately after the caboose of said east bound freight train had passed over the traveled portion of said crossing the said Rau carelessly and negligently and without taking the measures and ordinary precautions to ascertain whether any west bound train was approaching on the northerly track, drove said automobile upon said tracks immediately behind said caboose without waiting until it had passed a sufficient distance east of said crossing for him to ascertain whether a train was approaching west on the northerly track and by reason of which carelessness and negligence said automobile was struck, and the said August Harry Rau instantly killed, and defendants therefore allege that the injury and death of the said August Harry Rau, * * *, was due to the contributory negligence of said deceased, as hereinbefore alleged."
We approach a decision of this appeal having in mind the settled rule in this state that a motion for a nonsuit is in effect a demurrer to the evidence, and in considering whether it should be granted every fact will be deemed proven which the evidence tends to establish, in light most favorable to the plaintiff's case. Roberts v. Chicago, M. & St. P. Ry. Co., 67 Mont. 472, 216 P. 332; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253; Westerdale v. Northern P. Ry. Co., 84 Mont. 1, 273 P. 1051; Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 298. And no case should ever be withdrawn from the jury unless the conclusion necessarily follows, as a matter of law, that a recovery cannot be had upon any view which could reasonably be drawn from the facts the evidence tends to establish. Nord v. Boston & Mont. C. C. & S. Min. Co., 30 Mont. 48, 75 P. 681; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178; Wagner v. Donald, 67 Mont. 114, 214 P. 1099.
It appears from the evidence that the deceased was a farmer, 24 years of age, in good health, industrious, possessed of good habits, earning about $100 per month, and that as a result of the accident he sustained injuries from which he suffered pain and died on the day of the collision, when being taken by train to Billings, about one mile distant.
Jess Rawls, his wife, and baby were, on the occasion of the accident, riding in an open Studebaker car driven by Mr. Rawls in a westerly direction along the highway towards the city of Billings. As they approached the crossing they stopped as a freight train was passing, going in an easterly direction, at a speed of about 25 miles per hour. The car driven by the deceased was also headed towards Billings and was then stopped about 40 feet ahead of them awaiting clearance by the freight train, although the deceased had left the motor of his car running. It was an open "Ford roadster" without any side curtains on it.
The deceased had stopped his car about 20 feet from the southerly track and 35 to 40 from the center of the northerly track. He did not start his car up until the freight train had passed the crossing a distance of 75 or 80 feet; then started his car up at a rate of about 5 miles per hour and kept going until struck by the defendant company's locomotive. The engine hit the right rear wheel of the Ford car, and carried the car until it struck a telephone pole, where it was whirled around and tore down a cattle guard. The car was a complete wreck and the decedent was found badly injured bruised, and bleeding. The train, after striking the decedent's automobile, went on for a distance of a "good quarter of a mile before it came to a stop." The tracks were straight towards the east. The deceased was driving slowly and had traveled about 35 or 40 feet before he was struck by the on-coming eastbound passenger train. The distance between the two tracks from center to center is 13 feet and the distance between the rails of each track is 4 feet 8 inches. The witness estimated that the passenger train was going at a rate of 60 miles per hour, but on cross-examination stated that this was "of course, merely an estimate." Jess Rawls testified that, after the freight train had passed, the deceased started the car which he was driving in low gear across the tracks, and that the witness then saw the "passenger train locomotive come out from the rear end of the caboose of the freight train." The witness said that the freight train seemed to pick up speed as it went over the crossing and was going at a rate of about 20 or 25 miles an hour, and it had gone approximately 75 or 80 feet in clearance of the crossing before the deceased started to move his automobile. He testified that both he and the deceased started their cars preparatory to crossing the railroad tracks at about the same...
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