Van v. Union Pac. R. Co.

• Decision Date: 28 November 1961
• Docket Number: No. 8890,8890
• Citation: 366 P.2d 837,83 Idaho 539
• Parties: Norma L. VAN, Plaintiff-Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and W. E. Ayres, A. J. Hirning Paul Jiminez and M. O. Haskett, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 837

366 P.2d 837

83 Idaho 539

Norma L. VAN, Plaintiff-Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and W. E. Ayres, A. J. Hirning Paul Jiminez and M. O. Haskett, Defendants-Appellants.

No. 8890.

Supreme Court of Idaho.

Nov. 28, 1961.

Rehearing Denied Jan. 4, 1962.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson, E. C. Phoenix, D. A. Bybee, Pocatello, for appellants.

Kramer & Walker, Twin Falls, for respondent.

McFADDEN, Justice.

Mrs. Van, respondent, instituted this damage action for personal injuries and property loss, sustained in a collision between her automobile and a train. Appellants are the railroad company and members of the operating crew of the train involved. The action was tried before a jury which found for Mrs. Van in the amount of $16,403.81. Judgment was entered on the verdict.

Appellants have appealed from the judgment and from the order denying their motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Appellants specify error in the trial court's denial of various motions, in certain of its rulings on the evidence, in its giving of certain instructions, and in its refusal to give other requested instructions and as to the sequence by which the instructions were given.

The accident occurred shortly after 1:30 A.M., September 12, 1958, at the crossing where appellant company's five spur tracks to a sugar factory cross at right angles the county roal running easterly and westerly between Kimberly and Twin Falls. Mrs. Van, alone in her car and driving westerly toward Twin Falls, approached the crossing from the east and struck the ninth car of a slowly moving train on the middle or third track from the east. As a result of the injuries sustained she remembers nothing about the accident. None of the train crew was in a position to see the accident and there were no other witnesses to the accident.

The easterly approach of the highway to the crossing was straight and relatively level for about half a mile. The railroad maintained no crossing sign on the east, but had one on the west of the crossing. A flashing yellow light, installed by the sugar company hung approximately 15 feet above the roadway between the first and second tracks, some 42 feet east of the point of impact.

At the time of the accident the atmosphere was clear and dry; the night was dark with but few stars. A row of trees 130 feet east of the middle track runs north from the edge of the road and tends to obscure an approaching motorist's view to the north of the crossing. Several railroad cars stood on either track two or a crossover between tracks one and two, the nearest end of the cars being about 100 feet north of the road. The engine pulling the train was about 320 feet north of the crossing, and around a slight curve. The fireman, the only member of the five man train crew on the easterly side of the train, could not see the approaching automobile, his vision being blocked by the slight curve and the cars standing on the adjoining track. The engineer was on the west side of the engine, and the rest of the train crew were on the ground along the west side of the train directing switching operations and relaying signals.

The whistle had been blown and the crossing flagged only during the train's first southerly movement over the crossing. The train had crossed the highway, picked up some cars in a switching operation, reversed and was moving slowly north when the accident occurred. The car struck was the ninth car of the train, a coal or gondola car described as a 'dirty black'. Mrs. Van's car left skid marks on the highway over the last 100 feet before the impact, the last 60 feet being heavy skid marks. She was not under the influence of intoxicating liquor, although she admitted to having had two drinks.

The principal disagreement between the parties on this appeal is that the trial court's rulings and instructions were erroneous in submitting to the jury the question as to whether the particular crossing was 'extra-hazardous' or not. Appellants contend that as a matter of law the crossing was not extra-hazardous and the trial court should have so ruled, and not submitted the question to the jury. Respondent, on the other hand contends that such a question is one of fact for decision by the jury. Appellants urge that as a matter of law there was no negligence on their part and that Mrs. Van was contributorily negligent, or phrased differently, the record is insufficient to sustain the verdict.

In considering appellants' contentions attacking the sufficiency of the evidence to support the verdict, it is not within the province of this court to set aside a verdict unless it can be said that there is no conflict in the inferences, probabilities and conclusions to be derived from the evidence as to the negligence of the appellants, or as to the contributory negligence of Mrs. Van. Dunclick Inc. v. Utah-Idaho Concrete Pipe Co., 77 Idaho 499, 505, 295 P.2d 700; Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 192 P.2d 383. Where different minds might draw different inferences or conclusions from the facts, whether controverted or not, the issue is one for the jury alone. Fenton v. King Hill Irr. Dist., 67 Idaho 456, 186 P.2d 477; Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404; Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063.

This court has reiterated time and again the principle that the questions of the negligence of the defendant, or of the contributory negligence of the plaintiff are generally for the jury and not for the court. Bates v. Siebrand Bros. Circus & Carnival, 71 Idaho 318, 231 P.2d 747; Stowers v. Union Pacific Railroad Company, 72 Idaho 87, 237 P.2d 1041; Ralph v. Union Pacific Railroad Company, 82 Idaho 240, 351 P.2d 464. Mr. Justice Cooley gives as the principal reason for leaving such matters to the jury:

'But in a very large proportion of the cases in which negligence is counted upon, the facts are of that ambiguous quality, or the proper conclusion so doubtful, that different minds would be unable to agree concerning the existence of fault, or the responsibility for it. The question will often be, does the defendant appear to have exercised the degree of care which a reasonable man would be expected to exercise under like circumstances? To such a question a man of exceeding cautious temperament might respond that he did not; another more sanguine and bold might say he did; and by the side of one or the other of these would the rest of the community range themselves, each person largely affected by temperament and perhaps by his own experience, but firmly maintaining that rule to be a proper one which now, on a retrospective examination of the facts, seems to him to be such.

'If the judge, in such a case, were to pass upon negligence as a question of law, he must, in doing so, be endeavoring to enforce a rule of a variable nature, which must take its final coloring from the experience, training, and temperament of the judge himself; a rule which his predecessor might not have accepted, and which his successor may reject, and upon which a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different. * *' 3 Cooley, Torts, 4th Ed. § 481, p. 389.

The Supreme Court of California in the case of Peri v. Los Angeles Junction Ry. (1943), 22 Cal.2d 111, 137 P.2d 441, 446, made an observation that seems applicable in considering crossing cases generally. The court stated: 'Too frequently appellate courts have ignored those fundamental principles ¹ when dealing with railroad crossing accidents, and have arbitrarily substituted their conclusions of law as to the care a man of ordinary prudence would exercise under the circumstances presented to the trier of facts.'

This court, in Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 102 P. 897, 903, recognized the rule that a duty is imposed not only on the traveler crossing the track of a public highway, but also on the railroad. Both the railroad company and the traveler have equal and like rights and like responsibilities. While the Fleenor case was one involving a pedestrian hit by a moving train, somewhat different from the facts presented here, yet the rules and principles applicable are the same. The court recognized that the railroad company was under no statutory obligation to maintain gates or a flagman, but that under some and perhaps ordinary circumstances failure to do so would constitute negligehce at common law. Justice Ailshie in this opinion stated:

'The question as to whether the railroad company was guilty of negligence in not maintaining gates at this crossing or keeping a flagman there was properly a question of fact to go to the jury, under all circumstances of the case, and the necessities and requirements of the peculiar use of this crossing, and the extent of that use by the public'.

Appellants contend that Rowe v. Northern Pac. Ry. Co., 52 Idaho 649, 17 P.2d 352, and Smith v. Sharp, 82 Idaho 420, 354 P.2d 172, are decisive in their favor on this appeal, urging that the negligence of appellants, if any, merely constituted a condition, and the act of Mrs. Van in driving into the side of the train was negligence as a matter of law. With this contention we cannot agree.

The basis of the court's decision in the Rowe case is very difficult to determine. There, the plaintiff, a passenger in a car driven by a third person, was injured when the car crashed into the side of a train occupying a crossing in the City of Moscow. The facts indicate that the negligence charged against the railroad company was failure to comply with a city ordinance requiring an adequate light to be maintained on both sides of the crossing. The facts show that incandescent lights were maintained. The court did not discuss whether or not the company was guilty of negligence at all, nor did it...