Whiffin v. Union Pacific Railroad Co.

Decision Date06 April 1939
Docket Number6629
PartiesW. W. WHIFFIN, as Administrator of the Estate of HELEN P. WHIFFIN, Deceased, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, and H. W. JOSHTON (Johnston), Respondents
CourtIdaho Supreme Court

RAILROADS-HIGHWAY CROSSINGS-RELATIVE DUTIES OF TRAVELERS AND COMPANIES-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-PLEADING.

1. Though contributory negligence is defense to be pleaded and proved by defendant in death action, general demurrer to complaint, disclosing that decedent's negligence was one of proximate causes contributing to death, should be sustained. (I. C. A., sec. 5-816.)

2. A demurrer to complaint admits all material allegations of fact, well pleaded therein, and legitimate or necessary inferences therefrom.

3. A demurrer to complaint does not admit conclusions of law therein as statements of fact.

4. In action for death of motorist struck by defendant's passenger train at crossing, demurrer to complaint admitted physical facts alleged therein, but not statements that train was moving along track on opposite side of freight train "all unknown to" plaintiff, and that she drove automobile on such track "without any notice or knowledge" of passenger train's approach, in view of allegation that she was instantly or almost instantly killed by such train.

5. A demurrer to complaint in death action admits underlying facts alleged, but not legal conclusions as to what effect circumstances had on deceased's mind as negativing due care by defendant.

6. To charge railroad company with negligence in not having gate or watchman at highway crossing, facts showing crossing to be so hazardous as to require such safeguard must be pleaded.

7. In action against railroad company for death of motorist, struck by train at crossing, allegation of complaint, that it was defendant's duty to provide gates and keep flagman or watchman at such crossing, was a conclusion not admitted by demurrer to complaint.

8. In action for death of motorist struck by passenger train at crossing, demurrer to complaint did not admit allegations that defendants were negligent in not warning decedent, except by wigwag, of presence of railroad tracks previous passing of freight train and blowing of whistle though it had done so by gates or watchman under other like circumstances.

9. In action for death of motorist struck by train at crossing demurrer to complaint admitted allegations thereof that train was operated in violation of city speed ordinance and that there were no gates or watchman at crossing, but not that accident would not otherwise have occurred.

10. A person approaching railroad highway crossing must exercise reasonable care for his safety, look and listen from place of safety, and, if necessary, stop, look, and listen at point from which he can see or hear.

11. A person must reasonably use his senses, effectively look and listen while in place of safety, and make sufficient careful observation to ascertain whether he may safely proceed before going on railroad track at highway crossing, and his failure to do so is not excused by railroad company's omission of statutory duties.

12. While traveler need not keep his eyes continuously on railroad track before crossing it, he is bound to see what is plainly visible, where there is no obstruction of his view.

13. One failing to look and listen effectively before going on railroad track at highway crossing or thoughtlessly going thereon without his mind being then diverted by anything not under his control, chargeable to railroad company or reasonably to be guarded against by latter as hazard at crossing, is guilty of contributory negligence barring recovery from such company for resulting injury.

14. The stopping, required by statute of autoist approaching railway crossing after giving of clearly visible and positive signal warning of train's approach, must be effective for traveler's safety and is governed by requirements as to looking and listening, and it is duty of traveler, who knows or should know of apparent or further danger after starting onto crossing, to stop, look, and listen again, if he may with safety. (I. C. A., sec. 48-505.)

15. The speed at which train is running does not justify person in going upon track without looking and listening and exercising due care and precaution.

16. It is duty of traveler on highway to give way for passage of trains at railroad crossings.

17. A traveler has right to assume that railroad company will give required signals of train's approach to highway crossing and operate trains thereat at usual and ordinary rates of speed.

18. A railroad company must make approach of its train to crossing known by appropriate means, so that traveler may be able to discover approach thereof while in place of safety by looking and listening and stopping when required by statute or otherwise necessary.

19. A railroad company's failure to comply with any statute or ordinance is negligence per se.

20. A railroad company must provide such warnings and safeguards as relative situations of its tracks, highways and crossings and extent of its use thereof, reasonably demand as proper precautions for protection of traveling public, and failure to do so constitutes negligence.

21. Any violation of legal standards of conduct by railroad company or traveler must proximately contribute to ensuing accident at railroad crossing to establish company's liability or prevent recovery therefrom for injuries to traveler.

22. In action for death of motorist struck by train at crossing, the complaint, alleging that deceased did not know of train's approach, and not alleging facts showing that accident would not have happened or that deceased would have been merely injured had train traveled at legal rate of speed, was insufficient to state cause of action on ground of train's excessive speed in violation of ordinance, as not showing that such speed was a proximate cause of accident.

23. In action for death of motorist struck by train at crossing, facts alleged in complaint held insufficient to show that crossing was of such nature as to render defendant railroad company negligent in failing to have watchman or gates thereat.

24. In action for death of motorist struck by train at crossing, complaint held to disclose plaintiff's acts of contributory negligence proximately causing accident, in failing to look and listen from place of safety before crossing track, starting onto track with knowledge of slippery condition of highway, and failing to observe and heed wigwag, so as to bar recovery by plaintiff.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, Judge.

Action for negligence. Trial court sustained general demurrer to complaint. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Maurice H. Greene and Karl Paine, for Appellant.

The test of liability is the proximate cause of the accident. Under the admitted facts of this case appellant contends that the proximate cause of the injury was the violation of a duty that respondents owed to the deceased, and not the failure of deceased to stop, look, and listen. Indubitably, if the city ordinance had been observed, or if a barrier had been maintained, or if a personal warning had been given to the deceased, the accident would not have occurred. If the rule announced in the Fleenor case is applicable to the admitted facts (and we think it is), the demurrer should have been overruled. (Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 102 P. 897.)

Geo. H. Smith, H. B. Thompson and L. H. Anderson, for Respondents.

"Caveat Viator" (a term employed in appellant's brief) means "let the traveler beware"; this expression has definite application to railroad crossings, where, as a matter of universal law, the track itself is a warning of danger, and the traveler is required, as a matter of law, to look and listen attentively, and, if necessary, stop to inform himself whether a train is approaching. (Wheeler v. Oregon R. & N. Co., 16 Idaho 375, 102 P. 347, 356; Polly v. Oregon Short Line R. R. Co., 51 Idaho 453, 6 P.2d 478; Graves v. Northern P. R. R. Co., 30 Idaho 542, 166 P. 571.)

A general demurrer to a complaint should be sustained where it appears upon the face of the complaint that the plaintiff or the plaintiff's decedent, was guilty of negligence proximately contributing to the injury. (Smith v. Oregon Short Line Railroad Co., 47 Idaho 604, 277 P. 570; Ranstrom v. Oregon Short Line Railroad Co., 18 F. Sup. 256, 261; see, also, Draper v. City of Burley, 53 Idaho 530, 26 P.2d 128, 131.)

In order for contributory negligence to be a bar it is not necessary that such negligence be the sole proximate cause. (Rippetoe v. Feeley, 20 Idaho 619, 119 P. 465; 45 Corpus Juris, 978, 979, subject "Negligence," sec. 531.)

The exercise of ordinary care will not be presumed in the presence of a pleading which upon its face alleges facts constituting negligence on the part of the traveler which caused or directly contributed to his injury. (Northern P. R. Co. v. Freeman, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014; Morenci Southern R. Co. v. Monsour, 21 Ariz. 148, 185 P. 938, 941; Koster v. Southern P. Co., 207 Cal. 753, 279 P. 788, 794.)

GIVENS, J. Ailshie, C. J., and Budge, J., concur. MORGAN, J., Justice Holden, Dissenting.

OPINION

GIVENS, J.

Appellant as administrator of the estate of Helen P. Whiffin, deceased sued respondent railroad company and H. W. Joshton engineer of the lethal train, to recover damages for her death in a crossing accident. The trial court sustained a general demurrer to the complaint and this appeal is from the consequent judgment of dismissal upon appellant's...

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