Sandoval v. Atchison

• Decision Date: 19 February 1925
• Docket Number: No. 2851.,2851.
• Court: New Mexico Supreme Court
• Parties: SANDOVALv.ATCHISON, T. & S. F. RY. CO.

30 N.M. 343

233 P. 840

SANDOVAL

v.ATCHISON, T. & S. F. RY. CO.

No. 2851.

Supreme Court of New Mexico.

Feb. 19, 1925.

Syllabus by the Court.

Negligence of a railway company in operating its train over a country crossing at a speed of 30 miles per hour, which was its usual custom, within the knowledge of the plaintiff, whose automobile was wrecked by collision with the train, is not made out, in the absence of other evidence as to excessiveness of speed.

The charge of negligence in failing to give proper signals for a crossing over a railroad is not made out, where, without contradiction, the railroad company shows that such signals were in fact given, and where plaintiff, whose automobile was wrecked by collision with the train, simply says that he did not hear the signals, and that probably the reason was that he was completely inclosed in his car with the curtains.

The plaintiff drove his automobile into the train of defendant, after the locomotive and tender had passed the crossing. From a point 33 feet from the crossing the view of the track was entirely unobstructed, and an approaching train could be seen by any one willing to look. The plaintiff did not look. Under such circumstances, no recovery can be had for damages for the loss of his automobile. Morehead v. A., T. & S. F. Ry. Co., 27 N. M. 349, 201 P. 1048, followed.

A plea of general denial and a plea of contributory negligence are not inconsistent in a legal sense and may, when separately pleaded, be embodied in the same answer.

Appeal from District Court, Valencia County; Owen, Judge.

Action by Gabriel Sandoval against the Atchison, Topeka & Santa Fé Railway Company, in which defendant filed cross-complaint. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Charge of negligence in failure to give signals at railroad crossing is not established, where railroad shows without contradiction that signals were given, and plaintiff, whose automobile was wrecked by collision with train, says he did not hear signals, and probable reason was that he was completely enclosed in car with curtains.

W. C. Reid, of Albuquerque, J. M. Hervey, of Roswell, and E. C. Iden, of Albuquerque, for appellant.

D. J. Melton and W. C. Heacock, both of Albuquerque, for appellee.

PARKER, C. J.

The plaintiff (appellee) was driving his automobile on the road west of Grants, in Valencia county. At a point 3 miles west of Grants, the road leading to San Mateo, where plaintiff resides, makes a right-angle turn and proceeds north across the tracks of the defendant (appellant). Defendant's right of way is 100 feet wide on each side of its tracks, and, from the turn, 100 feet away from the tracks, to the crossing, the highway gradually ascends. It was a windy day, the wind blowing from the west, and raising considerable dust. Plaintiff had all of the curtains on the car and was, together with three companions riding with him, completely inclosed in the car. He drove to within 10 feet of the crossing, when one of his companions called his attention to the approaching train of defendant from the east, whereupon he applied his brakes, but failed to stop in time, and the automobile collided with the baggage car of defendant's train, the locomotive and tender having already passed the crossing. No one was hurt, but the automobile was wrecked.

Plaintiff brought action for damages for the destruction of the automobile, based upon the alleged negligence of defendant. Defendant answered, denying negligence, and, by way of new matter, charging plaintiff's negligence in the operation of his automobile as the proximate cause of the injury, and charging plaintiff with contributory negligence. Defendant also filed a cross-complaint, charging plaintiff with negligently injuring defendant's train to the extent of $100. Plaintiff replied, putting into issue the allegations of the answer by way of new matter, and answered the cross-complaint. At the close of the case defendant moved for an instructed verdict, which motion was denied. The case went to the jury, and it returned a verdict for plaintiff in the sum of $1,400. Defendant moved for judgment non obstante veredicto, which motion was denied. The court required a remittitur of $500, which was agreed to by the plaintiff, and judgment was thereupon rendered for plaintiff for $900 as damages, from which defendant has appealed. Counsel for plaintiff seek to sustain the judgment upon three acts of alleged negligence of defendant.

[1] 1. They say that defendant was operating its train (No. 3) at a high rate of speed, amounting to negligence under the circumstances. The circumstances relied upon are that it was windy and dusty. Whether it was sufficiently dusty to obscure the view is not shown. The plaintiff, long familiar with the crossing and the speed of trains thereat, testified that the train was running at its usual speed of about 30 miles per hour. Under such circumstances, and there being no statutory regulation of the speed of trains, the question of excessive speed of trains as...