Romero v. Denver & R. G. W. Ry. Co.
| Citation | 183 Colo. 32,514 P.2d 626 |
| Decision Date | 01 October 1973 |
| Docket Number | No. C--248,C--248 |
| Parties | Joe G. ROMERO, Petitioner, v. The DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, a Delaware corporation, Respondent. |
| Court | Supreme Court of Colorado |
Gerash, Gerash & Davies, Walter L. Gerash, Davies, St. Veltri & Dikeou, H. Anthony Ruckel, Denver, for petitioner.
Ernest Porter, Kenneth D. Barrows, Mark J. Rubald, Eric Paul, Denver, for respondent.
This action arose out of a railroad crossing collision between a car and a 54-car Denver & Rio Grande Western Railway Company (D. & R.G.) freight train. The plaintiff's complaint alleged that the railroad's negligence consisted of a failure to properly maintain the crossing and, alternatively, a failure of the railroad to give a proper warning by blowing a whistle or ringing a bell before the crossing was reached. The D. & R.G., in answering the complaint, denied the plaintiff's allegations and alleged affirmatively that the plaintiff was guilty of contributory negligence.
The case was tried to a jury. When the plaintiff rested his case, the D. & R.G. filed a written motion to dismiss alleging that the plaintiff failed to establish a prima facie case of negligence against the defendant and asserting that the evidence established contributory negligence of the plaintiff as a matter of law. The trial court granted the defendant's motion and specifically found that the plaintiff had not proved negligence on the part of the defendant, D. & R.G. and entered a verdict for the defendant. The trial court made no finding and did not rule that the plaintiff was guilty of contributory negligence. On appeal, the Court of Appeals, with one judge dissenting, affirmed the trial court and also ruled that the plaintiff was guilty of contributory negligence as a matter of law. Romero v. D. & R.G., 30 Colo.App. 516, 497 P.2d 704 (1972). We granted certiorari to review the decision of the Court of Appeals and now reverse and remand with directions that the plaintiff be granted a new trial.
The defendant's train ran into the plaintiff's car at a railroad crossing on February 27, 1965, at approximately 2:00 p.m. The railroad crossing is located near Minturn, Colorado, where the county road to the Minturn dump crosses the D. & R.G. tracks. The approach to the crossing was unmarked on the side from which the plaintiff approached, although a crossbuck existed on the other side of the tracks, approximately thirty feet from the crossing. Romero and his brother-in-law, Don Chacon, had driven to the Minturn dump and were on their way home at the time the collision took place. Romero's car approached the railroad crossing, which was located at the bottom of a downgrade, at a speed of between four and five miles per hour. The road was snow-packed and icy and both sides of the road were lined with high snowbanks. The evidence is in conflict as to the height of the snowbanks, but it is undisputed that a car such as the plaintiff's, when approaching the railroad crossing, would have the driver's view of an oncoming train cut off by the snowbanks at various points along the road. In an effort to resolve the question of visibility, numerous photographs of the scene were taken shortly after the collision occurred and were introduced into evidence, over the plaintiff's objection. The relevancy of some of the photographs is disputed by the plaintiff because the camera was not held at windshield level when the pictures were taken and some question exists as to whether the photographs accurately depicted what the driver of a car would see if he were driving past the same point on the road. However, the photographs do indicate that a railroad train, at approximately 200 feet from the crossing, would be visible from certain portions of the county road.
Romero testified that he did not see the train on the day of the accident before the impact. The driver of the car, Chacon was killed in the collision, and there is no way of knowing whether he saw the train or even looked for a train before he reached the crossing. The brakeman on the train, who was seated twelve feet above the tracks, testified that when the train was some 300 feet from the crossing, he saw the car at a distance of approximately 150 feet from the crossing. He said that he 'hollered' a warning to the engineer when he first sighted the car, but that the engineer did not respond. He also said that when the train was less than 100 feet from the crossing, he saw Romero's car emerge with its wheels skidding from behind the snowbank approximately nineteen feet from the tracks. He yelled then to the engineer that, 'We are going to hit him.' The engineer then applied the train's emergency brakes. The car slid into the railroad tracks and was stuck in that position when it was struck by the train.
The brakeman also testified that at the moment of impact, only seconds after the car had stopped sliding, it appeared that the driver of Romero's car was attempting to back the car away from the track. Both the engineer and the brakeman testified that the train's total stopping distance was nearly 700 feet, and that the design of the brakes on the train was such that the train's speed of thirty miles per hour was not reduced before impact occurred.
The evidence was in dispute as to whether the train's whistle was sounded before the collision occurred. The engineer and brakeman both testified that the train's whistle was blowing continuously for a distance of 800 to 1,000 feet before the crossing. However, the plaintiff offered the testimony of a woman who lived approximately three blocks from the crossing, and she said that she did not hear the train's warning whistle prior to the collision. Another witness was called by the plaintiff who was even closer to the crossing at the time of the collision, and he testified that he did not hear a warning whistle. Romero suffered severe head injuries in the collision and could not recall what happened immediately prior to the impact but said that he did not hear the train's warning whistle.
Romero argues that he established a prima facie case and that the trial court committed reversible error when it granted the defendant's motion to dismiss and entered judgment for the defendant. He contends that the evidence of negligence was in conflict and that the trial court invaded the fact-finding province of the jury and denied him the right to have the jury determine the factual issues by dismissing the case.
The defendant's motion was labeled as a motion to dismiss but was, in effect a motion for a directed verdict. C.R.C.P. 50(a). Therefore, the trial court was governed by the law relating to directed verdicts. When the trial court granted the defendant's motion, it determined as a matter of law that no cognizable conflict existed in the evidence and that no...
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