Walters v. Chicago, M. & P.S. Ry. Co.

• Decision Date: 14 June 1913
• Parties: WALTERS v. CHICAGO, M. & P. S. R. CO. ET AL.
• Court: Montana Supreme Court

133 P. 357

47 Mont. 501

WALTERS v. CHICAGO, M. & P. S. R. CO. ET AL.

Supreme Court of Montana

June 14, 1913

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

Action by Charles Walters against the Chicago, Milwaukee & Puget Sound Railway Company and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

George F. Shelton, Fred J. Furman, and A. J. Verheyen, all of Butte for appellants.

Maury Templeman & Davies, of Butte, for respondent.

SANNER J.

At about 6:12 p. m. on July 28, 1910, the respondent, while driving a Ford runabout, was struck on a public road crossing between Butte and Anaconda by one of appellant company's trains. His companion was instantly killed and he seriously injured. To recover for such injuries he brought this action alleging as negligence on the part of appellants that they were running the train at excessive speed, and that they failed to blow the whistle, ring the bell, or give any alarm of its approach. Respondent had a verdict for $15,000, upon which judgment was entered. This appeal is from that judgment, and from an order overruling a motion for new trial.

1. It is claimed that the evidence of appellants' failure to sound the whistle or ring the bell was insufficient to take the case to the jury, and that, in the face of positive testimony that the whistle was sounded and the bell rung, the jury was not authorized to find for the respondent. It is quite true that the testimony of the engineer and other employés of the appellant company is positive, and that of one other witness rather ambiguous, to the effect that the bell was rung and the whistle sounded in the regular way at from 50 to 80 rods from the crossing. The respondent, however, testified that, as he approached the crossing and for some time before reaching it, he was alert for any warning, having both looked and listened for the approach of a train, and that the whistle was not sounded nor the bell rung. D. M. Canty, who, with his brother and niece, had made the crossing a very few seconds before, and who were only 20 or 30 feet away, whose hearing was good, and who heard the sound of the train as it struck the respondent's machine, testified that he heard no whistle, nor bell, nor other warning of the train's approach; and James A. Canty also testified that he heard no whistle nor bell, though he hears all sounds plainly and distinctly. The niece, Miss Dugan, testified to similar effect.

The sufficiency of the foregoing to raise an issue, and the present contention of appellants against it, are alike settled in Riley v. Northern P. Ry. Co., 36 Mont. 545, 93 P. 948. At page 559 of that decision (93 P. 952), Mr. Justice Smith, speaking for this court, said: "Appellant affirms that it was proven by the uncontradicted evidence that the bell was ringing, and that there was a headlight upon the rear of the switch engine. On the part of the defendant there was positive testimony that the bell was ringing and the light burning. The plaintiff's witnesses simply testified that they did not hear any bell or see any light. Appellant argues that this negative testimony is of no weight, in view of the positive testimony opposed to it. Ordinarily, when one witness testifies positively that a certain thing existed or happened, and another witness, with equal means of knowing, testifies that the thing did not exist or happen, the so-called negative testimony is so far positive in its character that a court could not say that it was entitled to less weight than the affirmative testimony."

2. The testimony of respondent tended to show that, while he looked and listened as he approached the crossing, he did not "stop, look, and listen," and the question is presented by appellants whether the driver of an automobile, approaching a railway crossing, is not charged with the absolute duty to "stop, look, and listen." The appellants, conceding that as to other vehicles using a public highway the general rule upon approaching a railway crossing is to exercise such care and caution as might be expected of an ordinarily prudent person under the circumstances, insist that "the duty of an automobile driver, approaching tracks where there is restricted vision, to stop, look, and listen, and to do so at a time and place where stopping, and where looking, and where listening will be effective, is a positive duty." New York Central & H. R. Co. v. Maidment, 168 F. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794; Brommer v. Pennsylvania R. Co., 179 F. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924.

Both of the decisions just cited emanated from the Circuit Court of Appeals for the Third District speaking through Judge Buffington, and they proceed upon the mistaken ideas that a railroad has some sort of a paramount right to the use of a public highway crossing, and that whether a citizen using the highway on approaching such crossing must stop, look, and listen depends upon the motive power he is using and its amenability to control; whereas the true rule, as we understand it, is that the citizen has an equal right with the railway company to use the crossing, and the amenability to control of the motive power he is using bears more properly upon how near he may come to the place of danger before taking the precautions that common prudence generally requires. Of these cases nothing further need be said than this: If they are to be taken to hold, in the absence of express statute, that it is contributory negligence, as a matter of law, for the driver of an automobile not to stop, look, and listen before using a highway crossing, without regard to whether ordinary prudence would require such a course, they are contrary in spirit to the rule announced by the superior authority of the Supreme Court of the United States (Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485), are against the weight of general decision (Texas, etc., Ry. Co. v. Hilgartner [Tex. Civ. App.] 149 S.W. 1091; Pendroy v. Great Northern Ry. Co., 17 N.D. 433, 117 N.W. 531; Spencer v. New York Central & H. R. Co., 123 A.D. 789, 108 N.Y.S. 245; Bonert v. Long Island R. Co., 145 A.D. 552, 130 N.Y.S. 271; Hartman v. Chicago, etc., Ry. Co., 132 Iowa, 582, 110 N.W. 10; Louisville, etc., R. Co. v. Lucas [Ky.] 99 S.W. 959; Vance v. Atchison, etc., Ry. Co., 9 Cal. App. 20, 98 P. 41; Missouri, etc., Ry. Co. v. James, 55 Tex.Civ.App. 588, 120 S.W. 269; Chesapeake & O. R. Co. v. Hawkins [Ky.] 124 S.W. 836), and are in conflict with the settled rule in this state. Mason v. Northern P. Ry. Co., 45 Mont. 474, 124 P. 271; Sprague v. Northern P. Ry. Co., 40 Mont. 481, 107 P. 412; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 P. 140.

In the Sprague Case appears the following: "Whether, in selecting the point which they did select to stop and listen for approaching trains, Nelson and Chappel exercised ordinary care to make their listening effective, and whether, in doing what they did from that point until the injury occurred, they exercised such care and prudence as reasonable men under like circumstances would have exercised, were questions of fact for the jury to determine;" and in the Mason Case this court, disapproving of certain instructions, said "Neither of these instructions correctly states the law. They imposed too great a burden upon the plaintiff. If such were the law a person approaching a railroad track would...