Stowers v. Union Pac. R. Co.

• Decision Date: 15 November 1951
• Docket Number: No. 7784,7784
• Citation: 237 P.2d 1041,72 Idaho 87
• Parties: STOWERS et al. v. UNION PAC. R. CO.
• Court: Idaho Supreme Court

Page 1041

237 P.2d 1041

72 Idaho 87

STOWERS et al. v.UNION PAC. R. CO.

No. 7784.

Supreme Court of Idaho.

Nov. 15, 1951.

T. Harold Lee, Rigby, and W. Kent Naylor, Idaho Falls, for appellants.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson and E. H. Casterlin, Pocatello, for respondents.

THOMAS, Justice.

This action was brought by the children of Hazel Vesta Stowars to recover damages for the death of their mother, occasioned by injuries sustained at a grade crossing on a single track line of the Union Pacific Railroad Company approximately one mile north of Rigby, Idaho.

The case was tried before the court with a jury; at the close of all the testimony the jury returned a verdict for the appellants; respondents moved for a new trial and made a motion for judgment notwithstanding the verdict on the ground and for the reason that the evidence showed conclusively that the decedent was guilty of contributory negligence as a matter of law, and that such negligence contributed to her injuries which resulted in her death; the district court denied respondents' motion for a new trial but granted their motion for judgment notwithstanding the verdict, and judgment was accordingly made and entered dismissing the action.This appeal is from the judgment notwithstanding the verdict.

On October 11, 1948, some time between 6:00 and 6:30 P.M. of that day, Eliza Smith, as the driver of a Plymouth four-door sedan, with Joseph Smith, her husband, seated in the middle of the front seat, and Hazel Vesta Stowers also seated in the front seat on the extreme right side, left the farm home of Dell Smith at the end of the day after working on a potato harvester on Dell Smith's farm to go to Rigby.

The occupants of the car drove westerly on the private road of the farm for approximately 250 feet to the easterly right-of-way fence of the respondent, then turned left, and drove south approximately 275 feet parallel with the right-of-way fence until they reached an open gate entering the railroad right-of-way where the road crossed the single track at right angles.

Before entering the gate Eliza Smith stopped the car to clean her glasses, then drove through the gate on to the right-of-way and stopped again, either approximately 50 feet from the track (as Joseph Smith testified), or some 3 or 4 feet distant from the first rail of the track (as Mrs. Smith testified); at this second stop Mrs. Smith looked to the south and to the north along the track, which was straight for some distance in either direction, but saw no train approaching or heard a bell ringing or a whistle blowing, or any other warning signal; Mrs. Smith then asked Mr. Smith if he could see anything approaching on the track; Mr. Smith then looked and did not see anything and replied that he couldn't trust his own eyes, and he then turned to the decedent and asked her if she could see anything coming; the decedent looked and stated that the way was clear and that she couldn't see anything; the little window next to the decedent was partially open but no other windows were open and there was no radio in the car.

Mrs. Smith then shifted to low gear and proceeded to cross the track at about 10 miles an hour; the train was approaching from the north at about 30 miles an hour, and just as Mrs. Smith drove to the first rail the car collided with the engine and the ensuing injuries, resulting in the death of decedent, followed.

When the car entered the railroad right-of-way, which was 50 feet from the tracks, the train approaching from the north was about 150 feet from the crossing on an elevated grade.

All of the witnesses fixed the time of the accident as somewhere between 6:00 P.M. and 6:30 P.M.; in many other material respects, particularly with reference to the visibility and the warning signals, there is sharp conflict; the witnesses for the appellants all testified that the sun was down; some of them testified that it was dusky and approaching near darkness, while at least one witness testified that it was actually dark; the witnesses for appellants further testified that they did not see a headlight burning on the engine, that they did not hear a bell ringing or a whistle blowing, and that the lights on the automobile were burning; on the other hand, the witnesses for the respondents, which consisted of the members of the train crew and one other witness, testified that it was daylight and that the sun had not set, and that the visibility was good; the members of the train crew admitted that no whistle was blowing but testified that the headlight was burning and that the bell was ringing and that they saw no light burning on the Smith car.There is testimony that it was windy and dusty on this particular day; there were some trees in the background quite some distance north from the crossing, as portrayed by Defendants' ExhibitNo. 2.(See photo attached.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The only issue before this court on the record is the determination as to whether or not Mrs. Stowers was guilty of contributory negligence as a matter of law so as to warrant the judgment notwithstanding the verdict.

The respondents contend that from the evidence of the appellants it is conclusively shown that Mrs. Stowers was guilty of contributory negligence as a matter of law for the reason that the engine was only 150 feet away from the crossing at the time the car was approximately 50 feet from the crossing, and that some of the witnesses for plaintiffs testified that they could see for some distance along the track and others testified that they actually saw the train; that had she stopped and looked she could have seen, and listened she could have heard, the train, and that her failure to reasonably use her senses while in a place of safety constituted contributory negligence as a matter of law because she is chargeable with seeing what she could have seen has she looked attentively or effectively, and with hearing what she could have heard had she listened attentively and effectively; in this connection it is further urged that it will be presumed that she did not look or listen at all or, if she did, that she did not heed what she saw or heard.

A motion for judgment notwithstanding verdict admits the truth of the adversary's evidence and every favorable inference of fact which may be legitimately drawn therefrom.Hobbs v. Union Pac. R. R. Co., 62 Idaho 58, 108 P.2d 841;Department of Finance of State v. Union Pac. R. R. Co., 61 Idaho 484, 104 P.2d 1110;Allan v. Oregon Short Line R. R. Co., 60 Idaho 267, 90 P.2d 707;Manion v. Waybright, 59 Idaho 643, 86 P.2d 181;Hobson v. Security State Bank, 56 Idaho 601, 57 P.2d 685;Claris v. Oregon Short Line R. R. Co., 54 Idaho 568, 33 P.2d 348;Hendrix v. City of Twin Falls, 54 Idaho 130, 29 P.2d 352;30 Am.mjur., Sec. 58, p. 849.

Under this principle of law it must be assumed as a fact that the respondents gave no cautionary or warning signals of any nature and that no headlight was burning on the engine, and furthermore that it was dark, windy and dusty and that the occupants of the car stopped, looked and listened from a point of safety and did not see the approaching train.

It is the duty of a railroad company enjoined by statute to ring a bell or blow a whistle in approaching a railroad crossing and failure to do so is negligence per se.Department of Finance of State v. Union Pac. R. R. Co., supra;Allan v. Oregon Short Line R. R. Co., supra;Hobbs v. Union Pac. R. R. Co., supra;Judd v. Oregon Short Line R. R. Co., 55 Idaho 461, 44 P.2d 291;Wheeler v. Oregon Railroad & Nav. Co., 16 Idaho 375, 102 P. 347;Fleenor v. Oregon Short Line Railroad Co., 16 Idaho 781, 102 P. 897.

A traveler has a right to assume that a railroad company will give the required signals of the approach of the train so that the traveler by looking and listening, and stopping so to do, when required by statute or otherwise necessary, before crossing the tracks, may be able to discover, while in a place of safety, the approach of the train.Department of Finance of State v. Union Pac. R. R. Co., supra;Whiffin v. Union Pac. R. R. Co., 60 Idaho 141, 89 P.2d 540.

Through a long and unbroken line of decisions this court has held that where the evidence on material facts is conflicting, or where on undisputed facts reasonable and fairminded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence, contributory negligence and proximate cause is one of fact to be submitted to the jury and not a question of law for the court; if, upon all the facts and circumstances, there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury.Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651;Ford v. Connell, 69 Idaho 183, 204 P.2d 1019;Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 192 P.2d 383;O'Connor v. Meyer, 66 Idaho 15, 154 P.2d 174;Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490;Department of Finance of State v. Union Pac R. R. Co., supra;Adkins v. Zalasky, 59 Idaho 292, 81 P.2d 1090;Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895;Call v. City of Burley, 57 Idaho 58, 62 P.2d 101;Denton v. City of Twin Falls, 54 Idaho 35, 28 P.2d 202;Carr v. Wallace Laundry Co., 31 Idaho 266, 170 P. 107;Fleenor v. Oregon Short Line Railroad Co., 16 Idaho 781, 102 P. 897;see alsoScott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749.

The reason for such rule is appropriately set forth in the case of Adkins v. Zalasky, supra, and later repeated in the case of Hobbs v. Union Pac. R. R. Co., supra, in the following language [62 Idaho 58, 108 P.2d 848]: 'One reason for the rule that the existence of negligence, or contributory negligence, is not generally a question for the judge is that a jury is composed of...