Smith v. Oregon Short Line Railroad Co.

• Decision Date: 04 February 1920
• Parties: EMER W. SMITH and DAVID N. SMITH, Her Husband, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

187 P. 539

32 Idaho 695

EMER W. SMITH and DAVID N. SMITH, Her Husband, Respondents, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 4, 1920

RAILROADS-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

1. The failure of a railroad company to comply with C. S., sec 4820, requiring that a bell be rung when one of its locomotives is approaching a place where the railroad crosses a city street, is negligence per se.

2. Contributory negligence is generally a question of fact for the jury and only becomes one of law when the evidence is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances.

[As to general principles applicable to contributory negligence, see note in 55 Am.Dec. 555]

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

An action for damages by a married woman and her husband for personal injuries to the former; also an action for damages by the husband for injuries to his wife, and for destruction of personal property. The cases were consolidated, judgments were for plaintiffs and a new trial was denied. Affirmed.

Judgments and order affirmed. Costs awarded to respondents.

Geo. H Smith and H. B. Thompson, for Appellant.

Whatever the defendant may have done, or omitted, the driver was bound to stop, look and listen, or do such of these things as would effectually inform her whether a train was about to cross the street. (Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Burrow v. Idaho & W. N. R. R., 24 Idaho 652, 135 P. 838.)

Whatever the plaintiff had a right to expect in the relation of the railroad company toward her, she had not discharged her full duty until she had stopped, looked and listened, and looked so effectively, when she was, say, 50 feet from the crossing, as to see the train, which was then approximately 100 feet away, and in failing in this continuing duty, she was guilty of negligence per se which was operative at the time of impact or the collision could not have occurred. (Note to vol. 1914A, Am. & Eng. Ann. Cas., p. 536; note to 23 Am. & Eng. Ann. Cas. 1133; Hook v. Missouri P. R. R. Co., 162 Mo. 569, 63 S.W. 360; Woolf v. Washington Ry. & Nav. Co., 37 Wash. 491, 79 P. 997; Wilkinson v. Oregon S. L. R. Co., 35 Utah 110, 99 P. 466; Bates v. San Pedro. L. A. & S. L. R. Co., 38 Utah 568, 114 P. 527; Durbin v. Oregon Ry. & Nav. Co., 17 Ore. 5, 11 Am. St. 778, 17 P. 5; Aldredge v. Oregon W. R. & N. Co., 79 Wash. 349, 140 P. 550; Griffin v. San Pedro L. A. & S. L. R. Co., 170 Cal. 772, 151 P. 282, L. R. A. 1916A, 842; St. Louis Iron Mt. & S. R. Co. v. Gibson, 48 Okla. 553, 150 P. 465; Jacobs v. Atchison, T. & S. F. R. Co., 97 Kan. 247, Ann. Cas. 1918D, 384, 154 P. 1023, L. R. A. 1916D, 783; Headley v. Denver & R. G. R. Co., 60 Colo. 500, 154 P. 731.)

The object in putting in electric bells is to promote public safety, not to increase railroad liability. Silence of such a bell is not an invitation to cross railroad tracks without taking the ordinary precautions. (Jacobs v. Atchison, T. & S. F. R. Co., supra; McSweeney v. Erie R. Co., 93 A.D. 496, 87 N.Y.S. 836; Cleveland etc. R. Co. v. Heine Coffman, 28 Ind.App. 163, 62 N.E. 455.)

The presumption that one exercised due care cannot be indulged in the presence of evidence of the fact. (8 Ency. Ev. 900, note 16 and cases cited; Schmidt v. Missouri P. R. Co., 191 Mo. 215, 90 S.W. 136, 3 L. R. A., N. S., 196; Stotler v. Chicago & A. R. Co., 204 Mo. 619, 103 S.W. 1; Studley v. St. Paul & D. R. Co., 48 Minn. 249, 51 N.W. 115; Schofield v. Chicago, M. & St. P. R. Co., 114 U.S. 615, 5 S.Ct. 1125, 29 L.Ed. 224, see, also, Rose's U. S. Notes.)

Eustace & Groome, for Respondents.

Taking into consideration the admissions on the part of the defendant in its pleadings and the evidence in this case, the railroad company has been clearly guilty of negligence per se. Where the company fails to give the signals required by statute and a person is injured by one of their trains as a result, the company is liable in law for damages. (Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347; Fleenor v. Oregon S. L. Ry. Co., 16 Idaho 781, 102 P. 897.)

The question of contributory negligence is one for the jury to determine, and cannot arbitrarily be said to be a matter of law. (Wheeler v. Oregon R. & N. Co., supra; Fleenor v. Oregon S. L. Ry. Co., supra; Atchison, T. & S. F. R. Co. v. Feehman, 149 Ill. 202, 36 N.E. 1036; Staal v. Grand Rapids & I. R. Co., 57 Mich. 239, 23 N.W. 795; Continental Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; see, also, Rose's U. S. Notes; Antonian v. Southern P. Co., 9 Cal.App. 718, 100 P. 877; Jones v. East Tennessee, Va. & Ga. R. R. Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478, see, also, Rose's U. S. Notes.)

The citizen who, on a public highway, approaches a railroad track, and can neither see nor hear any indications of a moving train, is not chargeable with negligence in assuming that there is no train sufficiently near to make the crossing dangerous. (Tabor v. Missouri Valley R. R. Co., 46 Mo. 353, 2 Am. Rep. 517; Kennayde v. Pacific R. R. Co., 45 Mo. 255; Sullivan v. New York, N.H. & H. R. Co., 154 Mass. 524, 28 N.E. 911.)

The latest authorities covering the question as to the point where the traveler should look upon approaching a railroad crossing as a question for the jury have been compiled in an exhaustive note in 37 L. R. A., N. S., 140.

The known disposition of men to avoid injury and personal harm to themselves constitutes a prima facie inference that the person injured was at the time in the exercise of ordinary care and was himself free from contributory negligence. (Adams v. Bunker Hill & Sullivan M. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; 16 Cyc. 1057, and cases cited.)

The railroad company was guilty of negligence in the failure of its crossing bell to ring at the time of the accident. (Thompson on Negligence, sec. 1526, 1st supp.)

MORGAN, C. J. Rice and Budge, JJ., concur.

OPINION

MORGAN, C. J.

At about half-past 5 o'clock on the evening of December 15, 1914, as respondent, Emer W. Smith, was attempting to cross appellant's railroad track at a point where it intersects Ninth Avenue in the city of Caldwell, the horse she was driving and the buggy in which she was riding were struck by one of its locomotives. As a result of the collision she was seriously injured and the horse, buggy and harness were destroyed. An action was commenced against appellant by Mrs. Smith and her husband to recover damages for her injuries, and a separate action was commenced by the husband to recover damages sustained by him because of injuries to his wife and on account of the destruction of the above mentioned personal property. The cases were consolidated and tried together in the district court and will be disposed of here in one opinion.

Appellant contends that the evidence is insufficient to justify the verdicts and insists that its negligence was not the proximate cause of the...