Wheeler v. Oregon Railroad & Navigation Co.

• Citation: 102 P. 347,16 Idaho 375
• Court: United States State Supreme Court of Idaho
• Decision Date: 27 April 1909
• Parties: R. K. WHEELER, Respondent, v. THE OREGON RAILROAD & NAVIGATION COMPANY, a Corporation, Appellant

102 P. 347

16 Idaho 375

R. K. WHEELER, Respondent, v. THE OREGON RAILROAD & NAVIGATION COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 27, 1909

MOTION FOR NONSUIT-RAILROAD CROSSING-NEGLIGENCE-RINGING BELL AND BLOWING WHISTLE-CONTRIBUTORY NEGLIGENCE.

1. Revised Codes, sec. 4354, prescribes the grounds upon which a judgment of nonsuit may be entered.

2. This statute does not authorize a motion for a nonsuit until all of the evidence of the plaintiff has been put in or offered and the plaintiff rests his case.

3. The mere fact that counsel for plaintiff fails to state facts, in his opening statement to the jury, which would entitle plaintiff to recover is not a ground for granting a nonsuit before evidence is offered to support the plaintiff's claim.

4. The question of negligence may be a question of law and fact, or purely a question of law.

5. If the facts are disputed and from them reasonable and prudent men might disagree as to negligence, then the question of negligence becomes a question of fact, and under proper instructions must be submitted to the jury.

6. If however, the facts are undisputed and but one deduction can be drawn therefrom, then the question of negligence is purely one of law.

7. Rev Codes, sec. 2821, requires a railroad company operating trains to place a bell or whistle upon its locomotives, and to ring such bell or blow such whistle upon approaching a railroad crossing over a street or highway; and makes the company liable for damages sustained by any person and caused by its locomotives, trains, or cars, when the provision of this section is not complied with.

8. This section does not limit the liability of a railroad company to damages for injuries which result from the failure to ring the bell or blow the whistle, but declares absolutely that where the bell is not rung or the whistle blown and damages are sustained, the company is liable.

9. This section makes the failure of the railroad company to comply with its provisions negligence per se, negligence in law, and under this statute the plaintiff makes his case by showing the negligence or noncompliance with the law and the injury but this statute does not deny the right to the defendant to show that the plaintiff is not entitled to recover because of contributory negligence on the part of the plaintiff which was the proximate cause or one of the proximate causes of the injury.

10. As a general proposition of law, a person approaching a railroad crossing, whether a street crossing in a city or a crossing over a public highway in a country district, is required to stop, look and listen for an approaching train; and if he omits to do so and walks thoughtlessly upon the track, or if by looking and listening he could have seen the train coming and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives an injury, he so far contributes to it as to deprive him of any right to complain.

11. There are, however, exceptions to this rule, one of which is where the circumstances are such that it would avail nothing in preventing the injury if the injured party does look and listen, as it is only when it appears that he might see if he look, or might hear if he listen, that his failure to look and listen will necessarily constitute negligence.

12. In determining the care required to be exercised, reasonable allowance should always be made for the circumstances surrounding the case; and if a person is suddenly put into peril without having sufficient time to consider all the circumstances, he is excusable for omitting some precautions or making an unwise choice under this disturbing influence, although if his mind had been clear, he ought to have done otherwise.

13. The rule that it is contributory negligence for a person to go upon a railway track without looking or listening to ascertain whether there is danger from an approaching train depends upon the circumstances and conditions; and the question whether a per- son failing to look and listen is exercising the care which a reasonable and prudent person would exercise under such circumstances is a question for the jury.

14. The question, then, whether Mrs. Grant was guilty of contributory negligence in stepping upon the railroad track of the appellant in an effort to escape an apparent danger from a fractious team, without looking and listening for a note of warning of the approach of the appellant's train, depends wholly upon the question whether in view of all of the circumstances as they appeared to Mrs. Grant, as a reasonable and prudent person, at that time she acted in a prudent and reasonable manner and exercised reasonable care in the course she took, which is a question of fact for the jury to determine.

15. In such case the question depends, first, upon whether the defendant was negligent; second, if negligent, whether the plaintiff at the time of the accident was guilty of contributory negligence.

16. Where a witness, who is not a party to a suit for damages, makes a statement soon after the injury that "the accident was her fault," such evidence is hearsay and opinion evidence and not a statement of facts against interest or part of the res gestae, and should be stricken out on motion.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, in and for Shoshone County. Hon. W. W. Woods, Judge.

An action to recover damages for the killing of plaintiff's minor child. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Carlton Fox, A. H. Featherstone, and Ralph E. Moody, for Appellant.

The duty of a traveler in approaching and attempting to cross a railroad crossing is to stop, look and listen. And if his duty is omitted the traveler is guilty of negligence per se, and the court is bound to instruct the jury as a matter of law that a verdict be returned in favor of the defendant company. (Elliott on Railroads, 2d ed., secs. 1164-1166; International & G. N. R. Co. v. Edwards, 100 Tex. 22, 93 S.W. 106; Holmes v. South P. Ry. Co., 97 Cal. 161, 31 P. 834; Woolf v. Wash. R. & Nav. Co., 37 Wash. 491, 79 P. 997; Smith, Admr., v. Norfolk & Western Ry., 107 Va. 725, 60 S.E. 56; Dryden v. Penn. R. Co., 211 Pa. 620, 61 A. 249; Rumpel v. Oregon S. L. Ry. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 725; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Hooks v. Huntsville Ry. Light & Power Co., 147 Ala. 700, 41 So. 273; Wabash R. R. Co. v. Keister, 163 Ind. 609, 67 N.E. 521; International & G. N. R. R. Co. v. Edwards supra, and other cases cited above.)

A prima facie case of negligence against a railroad company for injuries to a traveler at a crossing is not established by proof of failure to give the statutory signals, but the evidence must show that such failure was the proximate cause of the injury. (Louisville & N. R. Co. v. Christian etc. Brewing Co., 150 Ala. 390, 43 So. 723; Rogers v. Rio Grande Western Ry. Co., 32 Utah 367, 125 Am. St. 876, 90 P. 1075; Clinebell v. Chicago B. & Q. Ry. Co., 77 Neb. 538, 110 N.W. 347.)

Sudden peril which will excuse what otherwise would be contributory negligence of the plaintiff must have been caused by the action of defendant and not a third person. (Trowbridge, Admr., v. Danville Street-car Co. (Va.), 19 S.E. 780.)

If one voluntarily goes into a place of danger without exercising the care required by law, he is guilty of negligence, although after so getting into the place of danger he exercises his best judgment to the best of his ability to escape from the danger. (Elliott on Railroads, 2d ed., sec. 1173; Davis v. Chicago R. I. & P. Ry. Co., 159 F. 10; New York Trans. Co. v. O'Donnell, 159 F. 659, 86 C. C. A. 527; Dummer v. Milwaukee Elec. Ry. & Light Co., 108 Wis. 589, 84 N.W. 853; Chattanooga Elec. Ry. Co. v. Cooper, 109 Tenn. 308, 70 S.W. 72; Briscoe v. Southern Ry. Co., 103 Ga. 224, 28 S.E. 638.)

A person in a vehicle driven by another is in duty bound to stop, look and listen. (Brickell v. New York Cent. R. Co., 120 N.Y. 290, 17 Am. St. 648; 24 N.E. 449; Fechley v. Springfield Traction Co., 119 Mo.App. 358, 96 S.W. 421; Illinois Cent. R. Co. v. McLeod, 78 Miss. 334, 84 Am. St. 630, 29 So. 76, 52 L. R. A. 954; Miller v. Louisville etc. R. Co., 128 Ind. 97, 25 Am. St. 416, 27 N.E. 339; Smith v. Maine Central R. Co., 87 Me. 339, 32 A. 967; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. 323; Missouri R. Co. v. Bussey, 66 Kan. 735, 71 P. 261; Galveston R. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127; Louisville & N. R. Co. v. Molloy, 28 Ky. Law, 1113, 91 S.W. 685; Cable v. Spokane & Inland E. R. Co., 50 Wash. 619, 97 P. 744; Davis v. Chicago R. I. & P. Ry. Co., 159 F. 10.)

The last chance doctrine does not apply unless the defendant have actual knowledge of the dangerous position of the plaintiff; nor does it apply where plaintiff has been negligent and such negligence continues concurrently with the negligence of the defendant directly contributing to produce the injury. (Sauer v. Eagle Brewing Co., 3 Cal.App. 127, 84 P. 425; Drown v. Northern O. Traction Co., 76 Ohio St. 234, 118 Am. St. 844, 81 N.E. 326; Int. & G. N. R. Co. v. Ploeger (Tex. Civ. App.), 96 S.W. 56; Cardwell v. Gulf B. & G. N. Ry. Co., 40 Tex. Civ. App. 67, 88 S.W. 422.)

The testimony of Mrs. McCain was admissible as an admission against interest and also as a part of the res gestae. (Elliott on Evidence, sec. 2510; Entwhistle v Feighner, 60 Mo. 214; Louisville v. Molloy, Admx., 28 Ky. Law, 1113, 91 S.W. 685; Westall v. Osborne, 115 F. 282, 53 C. C. A. 74; Rothrock v. City of Cedar Rapids, 128 Ia. 252, 103 N.W. 475; Lambert v. LaConner T. & T. Co., 30 Wash. 346, 70 P. 960; Ohio...