Sztaba v. Great Northern Ry. Co.

• Citation: 147 Mont. 185,411 P.2d 379
• Decision Date: 10 February 1966
• Docket Number: No. 10819,10819
• Parties: Stanley SZTABA, Plaintiff and Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Minnesota Corporation, and Marvin Hanson, Defendants and Appellants. GREAT NORTHERN RAILWAY COMPANY, Cross-Claimant and Appellant, v. VITALI TILE COMPANY, a South Dakota Corporation, Cross-Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 379

411 P.2d 379

147 Mont. 185

Stanley SZTABA, Plaintiff and Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Minnesota Corporation, and Marvin Hanson, Defendants and Appellants.

GREAT NORTHERN RAILWAY COMPANY, Cross-Claimant and Appellant, v. VITALI TILE COMPANY, a South Dakota Corporation,

Cross-Defendant and Respondent.

No. 10819.

Supreme Court of Montana.

Feb. 10, 1966.

Rehearing Denied March 3, 1966.

James O. Garden, Wolf Point, Weir, Gough & Booth, Edwin S. Booth (argued), Cordell Johnson (argued), Helena, for appellants.

Brattin, Habedank & Comming, Sidney, Whiting, Lynn, Freiberg & Schultz, Rapid City, S. D., Otto T. Habedank (argued), Sidney, for respondent.

JAMES T. HARRISON, Chief Justice.

This appeal is taken from plural judgments--the first by defendants-appellants Great Northern Railway Company, a Minnesota Corporation, and Marvin Hanson, its engineer employee from a judgment in favor of plaintiff-respondent Stanley Sztaba for $61,000; the second by defendant-appellant railroad from a judgment in favor of cross-defendant and respondent Vitali Tile Company for $1,500.

Plaintiff Sztaba, who was then an employee of the Vitali Tile Company, was the driver of a Vitali Tile Company pick-up truck involved in a collision with a Great Northern freight train at the Macon Crossing, five and one-half miles east of Wolf Point, Montana, about 4:00 P.M. on April 3, 1962.

The cause was tried to the court, sitting without a jury.

The complaint stated three claims based on (1) primary negligence of Great Northern and its employee Hanson, engineer of the freight train; (2) the doctrine of last clear chance, and; (3) wilful and wanton negligence and reckless disregard for the traveling public. The claim based on last clear chance was dismissed by the court on the defendants' motion.

The defendant by answer placed the allegations of negligence in issue. The defendants further alleged contributory negligence on the part of the plaintiff, and the defendant Great Northern then counterclaimed against plaintiff Sztaba in the amount of $2,192.71 for damages to railroad property at the crossing, and cross-complained against the Vitali Tile Company for damages to the same property in the same amount.

The record reveals that State Highway No. 13 crosses the Great Northern line at what is known as the Macon Crossing, about five and one-half miles east of Wolf Point, Montana. There are three sets of tracks at his crossing: the main track (northern-most track); the passing track (center track); and the industrial track (southern-most track).

The distance between the northern-most rail of the main track and the southernmost rail of the industrial track is approximately 48 feet. Just to the north of the north rail of the industrial truck, between that track and the passing track, an automatic electric Griswold crossing warning sign is located. This sign consists of the usual railroad crossbuck sign, tow red lights which flash alternately, and a 'STOP' sign which, when activated, rotates 90 degrees so that its command faces oncoming traffic to the south.

Other warning signs were located along the highway's approach to the crossing. Measurements made from the south rail of the industrial track show that eleven feet south therefrom is a sign reading '3 TRACKS'; a 'SLOW' sign is located south at a distance of 226 feet; a 'ROUGH BREAK AHEAD' sign is located south at a distance of 351 feet; and finally, at a distance of 488 feet is located a round railroad sign, called an 'advance warning' sign.

The freight train involved in this case was 91 cars, or nearly a mile, in length. It approached to Macon Crossing from the west at a speed of 59 Miles per hour.

The area surrounding the crossing is for the most part level.

A panoramic view photograph taken with the camera on the highway 1,000 feet south of the center of the main line track discloses to the left of the highway, being westerly, a string of tank cars extending to a grain elevator and associated buildings and then an open space until a string of grain storage bins is reached, then level open country beyond. To the right of the highway and on the north side of the railroad tracks appears a refinery complex. Utility poles are visible along the highway and also to the west above the tank cars and between the elevator and grain storage bins.

Another panoramic view photograph taken with the camera on the highway 600 feet south of the center of the main line track clearly indicates the presence of a railroad crossing and the trackage to the west becomes more visible to one traveling north on the highway since there is a view between the rows of grain storage bins which are erected in rows running east and west. As one approaches from the south and comes closer to the crossing and at about a distance of 230 feet from the south rail of the industrial track, the westward railroad tracks are totally obscured from vision. Total restriction of the westward view continues until the traveler is within about 100 feet of the southernmost rail, from which point onward the westward view rapidly expands and deepens.

Obstruction of the westward view is caused by a series of conditions, the first of which is the complex of grain storage bins before mentioned. The second obstruction consists of a house, trees and a grain elevator. The elevator building is 100 feet in length and is adjacent to the industrial track. The house and trees stand directly to the rear of the elevator, the two buildings together forming an obstruction some 125 feet deep as measured southward from the industrial track, and is some 584 feet west of the crossing The third obstruction in this series consists of 16 railroad oil tank cars which were 'spotted' four days prior to the accident on the industrial track. The eastern-most tip of this string was 90 feet west of the west edge of the crossing. The western tip of the string of cars was more than 584 feet from the crossing--or, in other words, beyond the eastern edge of the grain elevator.

The vision available to the motorist as he approached from the south of the railroad tracks to the west of the crossing, under the above-description of the obstructions, consisted of an ever changing intermittent oblique 'V-angle' of sight, the edges of which, to the south, were the grain storage tanks and to the north the house, trees and grain elevator. Regardless of the speed of the car this 'V-angle' of vision would have revealed the engine when a point about 100 feet south of the crossing was reached, being approximately 130 feet from danger, at which point the view around and past the eastern tip of the tank cars increased and lengthened. $The witness Curtis L. Nicholson, employed by the defendant railroad with the title of assistant engineer of plats and photography, whose duties included the preparation of plats relating to the scenes of accidents, after plotting lines of sight upon a plat which had been prepared entirely from actual measurements, but using the location of the tank cars as testified to by the highway patrolman who measured the distance from the crossing to the east end of the tank cars on the day of the accident, testified that from a point 75 feet south of the center of the main line of the railroad one can see the center of the track to the west of the crossing 209 feet. From a point 50 feet south of the center of the main line of the railroad one can see the center of the track to the west of the crossing 468 feet.

The testimony shows that the stopping distance for a motor vehicle traveling at 20 miles per hour is 37 feet; for one traveling 30 miles per hour the stopping distance is 70 feet.

The engine whistle and bell were sounded; the engineer testified that he started the crossing whistle signal about the west end of the industrial track which would be approximately 1,300 feet west of the crossing and turned on the automatic bell ringer. While there is conflicting testimony to the effect that the whistle and bell were not sounded until the train was within 600 feet of the crossing, the whistle and bell were sounding when the engine came to a point where it could have been seen by one in the pick-up. The engineer kept a lookout which revealed the approaching truck when it was less than a quarter of a mile south of the crossing and again when it emerged from behind the standing tank cars; the front of the engine was probably 150 feet from the crossing at that time; observing that the truck was not going to stop the engineer immediately reached for the brake valve and set the brakes in emergency and the engine struck the truck. Measurements taken following the accident indicate that the left front wheel of the truck was seven feet over the northernmost rail of the main track, the rear wheels of the pick-up were in the center of the crossing between the rails. Scuff marks or skid marks upon the crossing from the wheels at time of impact went sideways.

It is clear that the signal at the Macon Crossing, as shown by the testimony of an eye-witness, did give warning of impending danger. The witness testified that when the train was 'near the elevator' he saw the 'STOP' board on the Griswold signal turn, thereafter facing southward and sending its warning and command to travelers approaching the crossing from that direction. In addition, witnesses for the defendant Great Northern testified that if the 'STOP' board had been activated, thereby rotating 90 degrees, then necessarily the red flashing lights also were activated, since the same mechanisms served to trigger both forms of warning. But there is conflicting testimony as to whether, in fact, that red lights did flash. Evidence submitted by the defendant tends to show that the lights could not have been observed by anyone located where these several witnesses were located, due to the wide angle between the direction in which the lights were aimed and the point of observation to the...