Stroud v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 10 February 1926 |
| Parties | STROUD v. CHICAGO, M. & ST. P. RY. CO. HARRIS v. SAME. |
| Court | Montana Supreme Court |
Rehearing Denied Feb. 27, 1926.
Appeal from District Court, Fallon County; Stanley E. Felt, Judge.
Actions by Marvin Stroud and by William Harris against the Chicago Milwaukee & St. Paul Railway Company. From judgments for plaintiffs, defendant appeals. Reversed and remanded, with directions.
C. J Dousman, of Baker, and Murphy & Whitlock, of Missoula, for appellant.
D. R Young, of Baker, for respondents.
The above actions arose out of a collision between a Nash truck and a locomotive engine hauling a west-bound freight train of the defendant company, which occurred at what is known as the Main street crossing in Baker, Mont. The truck in question belonged to the plaintiff Stroud. It had a four-wheel drive, four-wheel brakes, the front wheels equipped with chains, and was used by the plaintiff Stroud in trucking and hauling timbers. At the time in question he was employed about the business of the plaintiff Harris. Stroud brought this action for damages to the truck, and Harris brought his action to recover for personal injuries sustained by him.
Except as to the damages claimed, the issues in the two cases were the same, and by stipulation they were tried together in the lower court. In each case the negligence charged against the defendant was the failure to blow the whistle or sound the bell of the locomotive in accordance with the provisions of section 6521, Revised Codes of 1921, as the train approached the crossing.
The answers denied generally the negligence alleged in the complaints, and set up. as affirmative defenses, contributory negligence on the part of the plaintiff in each case. The cases were tried to a jury. At the close of all the evidence, defendant moved for a directed verdict in each case, which was denied. The jury returned a verdict in favor of the plaintiff in each case, upon which judgments were entered. After defendant's motions for new trials had been overruled, it appealed from the judgments, and the appeals have been consolidated.
Stated in the light most favorable to plaintiffs' contentions where they are in dispute, the facts disclosed in the record are: Main street of the city of Baker runs north and south, and is 100 feet in width between the sidewalks which extend along either side. The main line track of defendant's railway crosses this street, running approximately east and west. Immediately north of the main line track, and parallel therewith, are three other tracks which are designated, successively, the passing track, the team track, and the house track. The distance from center to center of these tracks is as follows: Main line track to passing track 15' 2"', passing track to team track 16' 7"', team track to house track 27' 7"'. The portion of Main street across these tracks, used as a driveway, is planked. Just north of the house track and east from Main street there are numerous buildings and structures which cut off a view of the tracks from one approaching Main street from the east, until he reaches a point near the sidewalk. At the time in question there were some box cars standing on the house track about ------ feet east of the crossing, and also a string of box cars standing on the team track, extending east for a considerable distance, the first one of which was about 6 or 8 feet east of the Main street sidewalk. These cars further obstructed the view of the main track from one crossing from the north until he had gone far enough south to permit his line of vision to pass the southwest corner of the box car nearest the sidewalk. Plaintiff Harris lived one-half block north of the tracks and one block east of Main street.
Shortly after 8 o'clock on the morning of January 12, 1924, the two plaintiffs riding on the truck, with Stroud driving, started from the Harris home to cross over to the south side of defendant's tracks. In doing so they proceeded southwesterly until they reached the east line of Main street, when they turned to the south, and, entering upon the planked portion thereof, continued in a southerly direction. Both plaintiffs were possessed of good eyesight and hearing. At all times after starting from the Harris house they were both diligent in looking and listening for approaching trains. Neither of them heard a whistle blow or a bell ring, and did not see the west-bound freight train approaching until they reached a point about the middle of the team track. At about this time Harris saw the train and shouted to Stroud, "Hold 'er!" whereupon both plaintiffs reached for the emergency brake, which Stroud set, locking the wheels. At that time the clear distance between the front end of the truck and the point of impact with the locomotive was 17 feet. When the train came into view, the truck was traveling at the rate of 2 or 3 miles per hour, according to Stroud, and at 4 1/2 miles per hour, according to Harris. The speed of the train was estimated by different witnesses at 10, 12, and 25 miles per hour. Harris testified that under normal conditions, setting the brakes so as to lock the wheels would stop the truck "right now," and Stroud said it would have stopped it within a foot or two. The planking was icy and slippery. When the brakes were applied so as to lock its wheels, instead of stopping "right now" or "within a foot or two," the truck skidded forward for a distance of 7 to 10 1/2 feet, and, when it was "practically at a complete stop," collided with the side of the locomotive near its front end, causing the injuries complained of. Both plaintiffs were familiar with the crossing and knew of its condition. Stroud had driven the truck over it within half an hour before the accident. As the train approached the crossing, it was running down a slight grade; the locomotive was making little noise, and was not emitting smoke or steam.
Defendant's first specification of error is that the court erred in overruling its motion for a directed verdict in each case, and specifications 3 and 4 are to the effect that the court erred in overruling its motions for new trials on the ground that the evidence was insufficient to justify the verdict, and that it was against the law. These specifications will all be considered together, and may be disposed of in determining (1) whether the testimony showed that the plaintiffs themselves were guilty of negligence which contributed to bringing about the collision and resultant damage, and (2) whether the testimony showed that the injuries and damages sustained by plaintiffs were proximately caused by the negligence alleged in the complaint.
1. An examination of the testimony fails to convince us that it shows the plaintiffs were guilty of contributory negligence as a matter of law. They were on a public highway, where they had a right to be. The testimony tends to show that they were proceeding with due caution and circumspection; that they were diligently looking and listening for approaching danger that the truck was traveling at...
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