Westerdale v. Northern P. Ry. Co.

• Decision Date: 21 January 1929
• Docket Number: 6356.
• Citation: 273 P. 1051,84 Mont. 1
• Parties: WESTERDALE v. NORTHERN PAC. RY. CO. et al. SCHNIDER v. SAME.
• Court: Montana Supreme Court

273 P. 1051

84 Mont. 1

WESTERDALE v. NORTHERN PAC. RY. CO. et al.

SCHNIDER v. SAME.

No. 6356.

Supreme Court of Montana

January 21, 1929

Appeal from Ninth Judicial District Court, Gallatin County; B. B Law, Judge.

Separate actions by Andrew W. Westerdale and by Alfred Schnider, a minor, by Anna Schnider, his guardian ad litem, against the Northern Pacific Railway Company and another. Judgments for plaintiffs, and defendants appeal. Affirmed.

W. S Hartman, of Bozeman, and Gunn, Rasch, Hall & Gunn, of Helena for appellants.

E. F Bunker, of Bozeman, for respondents.

ANGSTMAN J.

On June 15, 1927, Lyle Westerdale and Alfred Schnider, both then of the age of 17 years, were riding in a Ford automobile driven by the former on a public highway about two and one-half miles east of Bozeman, Montana. As the automobile was crossing the railroad tracks of the defendant company at what is known as the Fort Ellis crossing, it was struck by an engine of the defendant company, operated by the defendant Magnuson as engineer. The Westerdale boy was killed, and the Schnider boy seriously injured. Andrew Westerdale, father of Lyle Westerdale, brought action to recover damages for the death of his son, and Anna Schnider, as guardian ad litem for Alfred Schnider, brought action for the injuries sustained by Alfred Schnider. The actions were tried together before the same jury and (save on the issue of damages) on the same evidence. The jury returned a verdict in favor of plaintiff in the Westerdale case in the sum of $2,165, and in favor of plaintiff in the Schnider case in the sum of $3,000. From the judgments entered on the verdicts, these appeals were taken.

The complaint in each action predicated liability upon the negligence of the defendants in failing to sound the whistle or ring the bell on the engine upon approaching the crossing, upon their failure to use reasonable care to observe the automobile approaching the crossing, and upon their failure to use reasonable care in stopping the engine in time to avert the death and injuries after striking the automobile. After all of the evidence had been introduced, upon request of the defendants the court withdrew from the consideration of the jury the question of negligence in failing to sound the whistle and ring the bell, and that of failing to use proper care to see the approaching automobile before it was struck by the engine. The cases were submitted to the jury upon the sole remaining question whether the defendants used reasonable care, under the last clear chance doctrine, to avoid the death and injuries after discovering the boys in their perilous position.

The court in its instructions limited the jury to a consideration of the following questions: "1. Could the engineer, after he actually discovered the boys in a perilous position upon the track, in the exercise of ordinary care, have stopped his engine in time to have avoided injuring them, but carelessly and negligently failed so to do? and 2. When were the injuries sustained by the boys actually received by them?"

It is contended by appellants that there was not sufficient evidence to sustain the verdicts in favor of plaintiffs on the issues thus limited, and that the verdicts rendered were the result of surmise and conjecture. This question was raised by a motion for nonsuit at the close of the evidence on behalf of plaintiffs, and by a motion for a directed verdict and for dismissal after all of the evidence had been introduced.

The evidence relied upon by plaintiffs to sustain the verdicts must, under such motions as the above, be construed in the light most favorable to plaintiffs, and every fact must be deemed established which the evidence tends to prove. Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Puutio v. Roman, 76 Mont. 105, 245 P. 523; Grover v. Hines, 66 Mont. 230, 213 P. 250; Awbery v. Schmidt. 65 Mont. 265, 211 P. 346.

The record discloses that at the time of the collision the engine was moving backward down a one per cent. grade in a westerly direction, and that the public highway ran parallel with, and on the north side of, the railroad for a considerable distance east of the crossing, and at the crossing in question it crossed the railroad track at right angles. The speed of the engine before the collision, as estimated by plaintiffs' witness George Boylan, who observed it from a distance of about 130 feet, was about 18 or 20 miles per hour. Mrs. Frances Collins, a witness for plaintiffs, who saw the engine from her house, a little more than 500 feet from the crossing, estimated the speed of the engine, after it had gone about 300 feet west of the crossing, as about 15 or 16, or maybe 20, miles an hour. The engineer, Magnuson, testified: "I observed the automobile the minute it came across the crossing back of the tender, and saw that it was not over six feet from the end of the tank." The engine ran about 640 feet west of the crossing before it came to a stop.

To prove that the engineer did not use reasonable care to stop the engine after seeing the automobile and appreciating the peril of the occupants, the plaintiffs introduced the following testimony: The witness George Boylan testified that the engine retained its same speed after the collision, and did not start to slow up until it got 200 or 300 feet down the track west of the crossing. This was corroborated by the testimony of Mrs. Frances Collins, who estimated the speed of the engine at a point about 300 feet west of the crossing as about the same as the speed was estimated by George Boylan before the collision. She also testified that she heard the brakes applied after the engine had passed the crossing more than 300 feet.

The witness F. J. Collins, who lived about 500 feet from the scene of the accident, testified: "The second morning, I think, after this accident happened I had occasion to observe the railway company testing out an engine of this type, or this same engine, as to its ability to stop at that particular place. At 4 o'clock in the morning I had occasion to get up and see one of those light engines backing down the track in the same way as that engine that had the accident. I would say it was coming down there anyway at twenty-five miles an hour. Just as it got to where that wreck was rolled off, I heard the brakes go on and saw it stop right then. I do not think it went the length of the engine and tender, perhaps about thirty feet."

Harry A. Harding, who resided about a quarter of a mile from this crossing, testified: "In the afternoon a few days after the accident the helper that had helped No. 2 up the hill came down the hill at full speed-I do not know what they run there, but they were probably going from twenty-five to thirty miles an hour-and when it got to the crossing, the power was shut off and it stopped approximately one hundred feet west of the crossing. The engine was a regular helper engine of the same type as the one in the accident."

John D. Huffine, an experienced railroad engineer, testified that he was familiar with and had run the type of engine known as the W-type, 1516, the same being the type used at the time of the collision in question. He also testified: "Assuming that the day was clear and that no storm or anything had occurred to obstruct the travel of the engine on the rails, that this type of engine was backing down the track and approaching the crossing known as the Fort Ellis crossing at approximately twenty miles an hour, that it was equipped with what is known as intermediate sanders-backup sanders-I would say that with sand under the two front drivers the engine could have stopped in the case of an emergency, within two hundred feet or less."

The weight of this evidence was for the jury to...