Smith v. Oregon Short Line Railroad Co.

• Decision Date: 07 May 1929
• Docket Number: 5058
• Citation: 47 Idaho 604,277 P. 570
• Parties: THOMAS A. SMITH and ELIZA M. SMITH, Appellants, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

277 P. 570

47 Idaho 604

THOMAS A. SMITH and ELIZA M. SMITH, Appellants, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent

No. 5058

Supreme Court of Idaho

May 7, 1929

RAILROADS-RAILROAD CROSSING-STATUTORY SIGNALS-RIGHTS AND DUTIES OF PARTIES USING CROSSING-CONTRIBUTORY NEGLIGENCE-PLEADING-DEMURRER-DISMISSAL.

1. Railroad company held negligent in not giving statutory signal under C. S., sec. 4820, by bell or whistle from at least

80 rods south of crossing at which plaintiff's automobile was struck by train.

2. Traveler upon highway approaching railroad crossing has right to assume that an approaching train will observe usual regulations and precautions at crossing.

3. Traveler's failure to make reasonable use of his senses when approaching railroad crossing is not excused by negligence of railroad company in omitting its duty, under C S., sec. 4820, to give signals by bell or whistle.

4. When there is no obstruction, a traveler upon a highway and approaching a railroad crossing is bound to see what is plainly visible.

5. Where motorists saw a train approaching crossing, but, from its make-up and fact that no signal was given, and other facts, believed that train was on spur-track which did not cross highway, and proceeded, they could not recover for damages sustained when train struck them, since, having seen train approaching, it was their duty to make sufficiently careful observation to ascertain whether they might safely proceed before they went upon the track.

6. Although contributory negligence is matter of defense, where it appears on face of complaint that plaintiffs' own negligence has contributed to injury, it may be urged by general demurrer.

7. Where defendant was entitled to judgment on merits under C S., sec. 6831, plaintiffs were not prejudiced by fact that judgment sustaining general demurrer was one of dismissal with prejudice, unauthorized by section 6830, specifying instances in which an action may be dismissed.

APPEAL from the District Court of the Fifth Judicial District, for Oneida County. Hon. O. R. Baum, Judge.

Action for damages. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

John W. Clark, for Appellants.

While the appellants do not believe that the respondent herein will claim that said complaint does not state facts sufficient to show negligence upon the part of the defendant, nevertheless, in support of said allegations of negligence, appellants cite the following authorities: C. S., sec. 4820 (2821); Wheeler v. Oregon R. R. & Nav. Co., 16 Idaho 375, 102 P. 347.

To rely upon the doctrine of contributory negligence it is necessary that the sole reasonable deduction from the complaint shall be that the plaintiff was guilty of contributory negligence as a matter of fact, and, second, that the contributory negligence was the proximate cause of the injury set out in the complaint. (20 R. C. L., Negligence, secs. 92, 101, 113; 1 Shearman & Redfield on Law of Negligence, 6th ed., p. 283, sec. 114.)

Geo. H. Smith, H. B. Thompson and J. H. McEvers, for Respondent.

"Under the decisions of this court and the statute (sec. 4221, Rev. Codes) contributory negligence is a defense to be pleaded and proven by the defendant. (Hopkins v. Utah Northern Ry. Co., 2 Idaho (Hasb.) 300, 13 P. 343; Adams v. Bunker Hill & Sullivan Min. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Crawford v. Bonners Ferry L. Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998.) While that is the law in this state, it does not alter the rule that where the complaint itself shows that the negligence of the plaintiff was one of the contributing causes of the injury or the proximate cause of the injury, plaintiff cannot recover." (Goure v. Storey, 17 Idaho 352, 105 P. 794-796.)

The purpose of the law in requiring warnings of a train's approach to a crossing to be given is that travelers upon a highway may be warned and know of the train's approach. Where the driver of an automobile knows of a train's approach, failure to give statutory signals is not negligence as to him, neither can it be said to be the proximate cause of any injury which he may receive.

"But since the purpose of signals is to give notice of the approach of trains to the crossing, a failure to give the usual or statutory signals is not negligence as to one who is warned of or hears or sees or by the exercise of reasonable diligence might hear or see the approaching train and by the exercise of reasonable care avoid the injury." (33 Cyc. 966.)

"In order that one injured may recover he must be able to show that the omission of the signal was the proximate cause of his injury, and in no case can one recover on account of such omission who by any other means has timely notice of the approach of the train and after he has seen the danger the purpose of the signals is subserved whether they have been given or not." (3 Elliott on Railroads, sec. 1652, p. 520; Haber v. Pacific Electric Ry. Co., 78 Cal.App. 617, 248 P. 741; Southern R. Co. v. King, 160 F. 332; 87 C. C. A. 284; Chicago, M. & St. P. R. Co. v. Clarkson, 147 F. 397, 77 C. C. A. 575.)

BRINCK, District Judge. Givens, Wm. E. Lee and Varian, JJ., concur.

OPINION

BRINCK, District Judge.

From a judgment dismissing plaintiffs' complaint, upon the sustaining of a general demurrer thereto, the plaintiffs appeal. By their complaint plaintiffs sought to recover damages for injuries to person and property alleged to have resulted from defendant's negligent operation of a railroad train at a highway crossing, and the ruling of the trial court was based upon the theory that plaintiffs' contributory negligence appeared on the face of the complaint.

The facts alleged were that the defendant's railroad, at the place of the accident, runs north and south and is crossed by a highway running east and west; that on the east side of the main-track of the railroad, and at a distance of 18 feet therefrom, is a spur-track parallel to the main-track, which spur does not cross the highway, but extends from a point south of the highway to a point 400 feet farther south, where it joins the main-track; that from time to time, during many years, the defendant had placed freight-cars upon the spur and permitted them to stand there, and had done so for several days prior to the day of the accident, all of which facts were known to plaintiffs; that on the day of the accident plaintiffs were approaching said railroad crossing along the highway from the west, driving an automobile carefully and under control, and observed a train south of the crossing made up of an engine with three freight-cars ahead of it and three freight-cars behind it that no bell, whistle or other signal was given by the defendant as it approached the crossing with its train; that the cars in front of the engine were not equipped with air-brakes properly connected up, that no one was placed on the front of the cars as a lookout, and that these omissions, together with the peculiar make-up of the train, all of which are charged as...