Rowe v. Northern Pacific Railway Company

• Citation: 52 Idaho 649,17 P.2d 352
• Decision Date: 22 December 1932
• Docket Number: 5915
• Parties: WAYNE ROWE, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant
• Court: United States State Supreme Court of Idaho

17 P.2d 352

52 Idaho 649

WAYNE ROWE, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant

No. 5915

Supreme Court of Idaho

December 22, 1932

RAILROADS-COLLISION-NEGLIGENCE-PROXIMATE CAUSE-APPEAL AND ERROR-BRIEFS, SUFFICIENCY OF.

1. Appeal will be considered though appellant's brief contains no tabulated points and authorities or proper specifications of error, where main specifications are thoroughly discussed in body thereof.

2. Automobile driver's and guest's negligence held proximate cause of latter's injuries in collision with standing box-car.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Suit by Wayne Rowe against the Northern Pacific Railway Company for damages for personal injuries resulting from a collision with a standing box-car. Judgment for plaintiff. Reversed.

Judgment reversed; Costs to appellant.

Cannon McKevitt & Fraser and C. J. Orland, for Appellant.

The appellant railway company was not negligent as a matter of law in failing to give warning in addition to the statutory signals, where, as here, the automobile in which respondent was riding was driven against the side of a string of box-cars stationary on the crossing. (Butters v. Chicago M. & St. P. Ry. Co., (Iowa) 243 N.W. 597; Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122, 16 A. L. R. 1102; Allison v. Chicago, M. & St. P. R. Co., 83 Wash. 591, 145 P. 608; Jones v. Atchison R. Co., 129 Kan. 314, 282 P. 593; Newsom v. Illinois Cent. R. Co., 11 La. App. 50, 122 So. 874.)

Warren Truitt and A. H. Oversmith, for Respondent.

Where it is shown that there has been a positive violation of the law with resulting injury and such violation is the proximate cause of such injury, negligence may be presumed. Therefore the failure to maintain and install lights which would adequately light the crossing and trains standing thereon as provided by the ordinances of the city of Moscow of itself would be a fact from which negligence may be presumed. (Smith v. Oregon Short Line Ry. Co., 32 Idaho 695, 187 P. 539; Jakeman v. Oregon Short Line Ry. Co., 43 Idaho 505, 256 P. 88; Kerby v. Oregon Short Line R. Co., 45 Idaho 636, 264 P. 377; Packard v. O'Neil, 45 Idaho 427, 437, 262 P. 881, 56 A. L. R. 317 (note); Smith v. Oregon Short Line R. Co., 47 Idaho 604, 277 P. 570.)

LEE, C. J. Budge, Givens and varian, JJ., Concur. Leeper, J. took no part in the decision.

OPINION

LEE, C. J.

Suit for damages due to collision with standing box-car. Defendant and appellant, Northern Pacific Railway Company, has long maintained a grade crossing over Main Street in the city of Moscow. From the south, it is approached by a standard, twenty foot, gravel highway, the last sixty-five feet thereof consisting of a plank bridge maintained by the city, with the exception of that portion over which appellant's trains operate. In January, 1931, the city installed a modern incandescent light 73.2 feet south of the crossing. About the year 1916, a similar light had been installed by the city 47.8 feet north of the crossing and thereafter maintained by appellant.

At about 12:30 A. M., May 27, 1931, while appellant's freight engine was talking on water at a tank and some of the appellant cars were standing still on the crossing, a new Studebaker sedan automobile owned and driven by one Thomas, approaching from the south, crashed into one of the box-cars, totally demolishing the sedan and inflicting grievous facial injuries upon plaintiff and respondent, Wayne Rowe, who as a guest was sitting in the front seat next to Thomas.

Pleading that by reason of its neglect and failure to comply with the city ordinance requiring appellant to maintain an adequate light adjacent to such crossing, respondent and the driver. Thomas, were unable to see the obstruction in time to avoid the collision, respondent sought damages for his injuries and secured a verdict and judgment in his favor. The railway company has appealed, assigning some twenty specifications of error, primarily charging that the trial court erred in denying appellant's motion for nonsuit.

Appellant's brief contains no tabulated points and authorities. Neither does any one of its specifications of error comply with the announced rules and decisions of this court. However, the main specifications are thoroughly discussed in the body of the brief and supported by relevant authority. For this reason, we will not refuse to consider the appeal. (Mountain States Implement Co. v. Arave,

49 Idaho 710, 713, 291 P. 1074; Berg v. Carey, 40 Idaho 278, 232 P. 904.)

It is evident that respondent tried his case upon the theory that appellant knowingly maintained a dangerous condition proximately responsible for the former's injury. The record discloses that both Thomas and respondent had long been familiar with the crossing in question and its condition, having crossed and recrossed it innumerable times day and night. They were not strangers who, when apprised of an imminent railroad track, are imposed with the duty...