Walsh v. Butte, A. & P. Ry. Co.

• Decision Date: 13 December 1939
• Docket Number: 7886.
• Parties: WALSH v. BUTTE, A. & P. RY. CO.
• Court: Montana Supreme Court

97 P.2d 325

109 Mont. 456

WALSH v. BUTTE, A. & P. RY. CO.

No. 7886.

Supreme Court of Montana

December 13, 1939

Appeal from District Court, Second District, Silver Bow County Jeremiah J. Lynch, Judge.

Action by Mary Walsh, administratrix of the estate of William E Stevens, against the Butte, Anaconda & Pacific Railway Company, for the death of decedent in a collision with defendant's train. From an order granting defendant a new trial, plaintiff appeals.

Affirmed.

Earle N. Genzberger and Emigh & Murray, all of Butte, for appellant.

W. H Hoover, J. V. Dwyer, and J. T. Finlen, Jr., all of Butte, for respondent.

ANGSTMAN Justice.

This is an action by the administratrix for damages for the death of William E. Stevens, alleged to have been caused by the negligent acts and omissions of defendant. The jury found for plaintiff in the sum of $37,500. Defendant filed a motion for new trial on all the statutory grounds. The motion was granted by a general order giving no intimation as to what particular ground or grounds furnished the basis for the order. One of the grounds of the motion was newly discovered evidence, but since no affidavits were offered showing any new evidence, that ground of the motion was, in effect, abandoned.

The question before us is, Did the court abuse its discretion is granting the new trial? If we hold that it did not and that a new trial is proper, then plaintiff desires that certain questions be passed upon which will be certain to arise upon the new trial.

Defendant, without taking a cross-appeal or making any cross-assignment of error, argues that the court should have granted its motion for a directed verdict on the ground of its freedom from negligence, and on the ground that the decedent's death was shown to have been caused by his own contributory negligence, and that, in consequence, instead of remanding the cause for a new trial, we should order its dismissal.

So much of the facts of the case as we deem important will be recounted when considering the law point to which they are pertinent. In considering the question whether the court erred in granting a new trial we keep in mind the rule, well settled by the decisions of this court, that granting or denying a new trial is a matter that rests in the sound discretion of the trial court, and its order will be reversed only for manifest abuse of discretion. Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228, and cases therein cited; Brennan v. Mayo, 100 Mont. 439, 50 P.2d 245, 248. In the Brennan case the court quoted with approval the following language used in the case of Bull v. Butte Elec. Ry. Co., 69 Mont. 529, 223 P. 514: "'It has become axiomatic in this jurisdiction, and elsewhere, that, where the evidence is conflicting, the order of the trial court granting or refusing a new trial will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. The rule and the reason for it have been stated so often that a citation of authorities is unnecessary. *** And, while the parties are entitled to the judgment of the jury in reaching a verdict in the first instance, upon motion for a new trial they are equally entitled to the independent judgment of the court as to whether the verdict is supported by the evidence."' And an order granting a new trial will not be set aside by this court as readily as one denying it. Maki v. Murray Hospital, supra.

Keeping in mind these rules, we cannot say from the record that the court abused its discretion in granting a new trial; hence plaintiff's contention that we should set aside the order and affirm the judgment cannot be sustained.

We shall now briefly review the evidence for the purpose of determining whether the court should have gone further and dismissed the action. Treatment of this question will incidentally answer some of the questions likely to arise on a new trial. As to the pleadings it may be said that plaintiff bases her right to recover upon negligence on the part of defendant in backing a train over a street crossing without warning of its approach; that there was no light on the rear car as required by a city ordinance pleaded in the complaint; that the company maintains two sets of gates at the crossing in question, one set on each side of the railroad tracks, in charge of a gateman, each set of gates consisting of two long vertical moving arms, one on each side of the street, which, when lowered, covered the whole of the street; that defendant failed to lower the gates in time to avoid the collision, and that it failed to have an arc light over the crossing as required by ordinance. Defendant denied that it had been guilty of negligence and pleaded contributory negligence on the part of Stevens. It alleged that the crossing gates had been and remained lowered during the time when Stevens traveled the last 300 feet before reaching the crossing, and that the whistle was blown and the bell rung as the train approached the crossing.

It is the contention of defendant that there is no evidence tending to show negligence on its part, and that the evidence establishes that the collision was due to negligence on the part of Stevens. The cause of action arose, as shown by the pleadings and evidence, out of a collision between an automobile driven by Stevens and defendant's train at an intersection of defendant's railway tracks and Montana Street, the center line of which marks the west boundary of the city of Butte. The accident occurred on February 25, 1936, at about 7:30 in the evening.

On behalf of plaintiff there was but one witness who testified to material points. That witness was Romeo Campeu, who was riding in the automobile with Stevens at the time of the collision. The substance of his testimony was that he had invited Stevens to his house for dinner on the evening in question, and that before going to dinner Stevens desired to go, and did go, to Turpin's place on South Main Street, to see about selling a safe; that they remained at Turpin's place for about an hour and then went up Montana Street; that it was dark and a little foggy; that they were proceeding northward on the right hand or east of the center line of the street; and that on the east side of the street "there are a lot of sign boards, two or three big ones that I know of, and further up is a filling station with pumps in front and a light on one or two of the pumps which obstructed you considerable." He further said that as they were about opposite the Milwaukee depot, which was shown to be just below Second Street, they had seen the train go by going east. The crossing gates then went up; as they were close to or past Second Street they were traveling about 15 or 20 miles per hour; as they approached the railroad crossing he heard neither bell nor whistle and saw no lights on the train; when about 10 or 12 feet on the south side of the crossing gate or arms, they suddenly came down and hit the car; that the car proceeded onward and struck the train which was then backing westward over the crossing. He did not see any brakeman or flagman on the rear end of the train, which consisted of black ore cars. He did not see the train until the gate started to come down. He said: "I don't know how far the gates are from the track; my judgment is probably 5 or 6 feet, but I am not sure on that." When asked where the most westerly portion of the train was as the gates began to come down, he replied that he did not know. When asked, "Was it all across the intersection?" he replied, "The train just beginning to come apparently." Asked whether it was the first or second car that was on the crossing when he first saw the train, he said he did not know which it was "but it was the front portion of the train, the front going west."

The evidence introduced by defendant will not be reviewed here. It is sufficient to say that the evidence is in sharp conflict, if that of plaintiff be sufficient to raise a conflict. Defendant produced several witnesses whose testimony was to the effect that Stevens ran into the gates which had been lowered long before he reached the crossing. However, the evidence submitted by plaintiff is not so improbable, self-contradictory or contrary to the physical facts as to be unworthy of belief, it matters not how many witnesses testified to the contrary, the case must still go to the jury. Hill v. Haller, 108 Mont. 251, 90 P.2d 977.

Defendant contends that the testimony of Campeu should be disregarded as contrary to the physical facts. We do not so view his testimony. Much is made of the fact that if Campeu saw the train as it passed the crossing going east when he said he did, it could not have stopped and reversed its course in time to get to the crossing when it did. The fact remains that it was at the crossing when the collision occurred. It is undisputed that it got there by backing up, and it is undisputed that immediately prior to backing up it had passed eastward over the crossing. As to when Campeu first saw the train going eastward, or whether he saw it at all at that time, is a collateral matter and his statement in that regard should not be seized upon as a reason for condemning all of his testimony. Compare Hill v. Haller, supra.

The evidence is in sharp conflict as to whether the arms of the gates were up or down as Stevens approached the crossing. Campeu's testimony that they were up and were suddenly dropped when the automobile...