Willy v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 03 September 1946
• Docket Number: 15561.
• Parties: WILLY v. ATCHISON, T. & S. F. RY. CO. et al. (two cases).
• Court: Colorado Supreme Court

172 P.2d 958

115 Colo. 306

WILLY v. ATCHISON, T. & S. F. RY. CO. et al. (two cases).

No. 15561.

Supreme Court of Colorado, en Banc.

September 3, 1946

Error to District Court, Arapahoe County; Harold H. Davies, Judge.

Action by Elizabeth Willy against Atchison, Topeka & Santa Fe Railway Company and others to recover for the wrongful death of plaintiff's husband as the result of a collision between husband's automobile and defendant's train. The action was consolidated for trial with an action by Joyce M. Willy, by Elizabeth Willy, her next friend, and by Elizabeth Willy individually, against Atchison, Topeka &amp Santa Fe Railway Company and others to recover for personal injuries to and for medical care and attention furnished to the infant plaintiff, Joyce M. Willy, for injuries arising out of the same accident. To review judgment for defendants plaintiffs bring error.

Affirmed.

The consolidation of actions for trial which appear to be of like nature and concern themselves with the same or similar questions rests within sound discretion of trial a Colorado resident at time of filing affidavit court, and its action thereon will not be disturbed except for the abuse of discretion. Rules of Civil Procedure, rule 42a.

A. X. Erickson, and Con K. O'Byrne, both of Denver, for plaintiffs in error.

Grant Shafroth & Toll, and Grant E. McGee, all of Denver, for defendants in error.

ALTER Justice.

Elizabeth Willy brought an action against the Atchison, Topeka and Santa Fe Railway Company, N. J. Morahan and W. J. Schwarz to recover damages in the sum of $5,000 for the death of her husband, occasioned, as she alleged, by the negligence of defendants which resulted in a collision between decedent's automobile and a train of the company operated by the individual defendants. She also, in her own right and as next friend of Joyce M. Willy, her infant daughter, instituted another action in which she sought to recover judgment for and on account of medical care and attention for the daughter who was injured in the collision. In this latter action Joyce, by her next friend, also sought to recover $15,000 damages for personal injuries which she sustained in the accident. The two cases were consolidated, and a jury trial resulted in verdicts for defendants and consistent judgments were entered accordingly. To review these judgments plaintiffs bring the causes here by writ of error.

We will refer to plaintiffs in error, plaintiffs below, as plaintiffs or by name, and defendants in error, defendants below, will be designated as the company, and the individuals by name.

The collision occurred at a railroad crossing outside the city limits of the city of Englewood, Colorado, on West Oxford avenue, which runs in an easterly and westerly direction, defendant company's tracks running generally in a northerly and southerly direction. Plaintiffs, together with the husband and father, who was driving the automobile, had lived westerly of the railroad tracks approximately six months and frequently crossed the same at a point north of the crossing at which the collision here involved occurred. On the evening of December 1, 1942, the Willy family, consisting of Elizabeth, Joyce and the deceased husband, had visited at a friend's house until about 10:30 o'clock, when they proceeded westerly toward the railroad tracks. The night was cold, and the automobile was being driven at the rate of about ten miles per hour, in low gear. On approaching the railroad crossing, Elizabeth noted a warning sign to her right about 200 feet distant and a similar sign at her left a short distance ahead. With reference to the warning signs and the occurrences immediately prior to, and at the time of, the collision plaintiff Elizabeth Willy testified, inter alia:

'Q. * * * I believe you testified when you were at a point about 25 feet east of the track you looked to your right. A. As we drove down the road I saw the signs over there down on the right-hand side of the road, the highway stop sign.

'Q. The highway stop sign Before you got to Santa Fe? A. The first I saw this was while I was looking to the left. I saw the railroad crossing sign on the left-hand side of the road, and wondered where the track was. I wondered about the sign on the left-hand side of the road; we must have crossed it.

'Q. In other words, you wondered about where the track was as you approached the railroad? A. The first I saw the sign was on the left-hand side of the road; the sign should be on the right-hand side of the road, not the left-hand.

'Q. You knew the railroad track was in the immediate vicinity, and you wondered where it was? A. Well yes, I wondered. The sign was on the left-hand side; I wondered where it was.

'Q. You wondered where the track was, I believe you stated, when you were about 45 feet east of the track? A. I wouldn't say 45 feet east. * * *

'Q. When, if ever, did you stop and look and endeavor to find out if there was a train on any tracks in front of you? A. As soon as I saw the sign down on the right-hand side of the road, I began immediately looking.

'Q. When you saw the sign on the left-hand side of the road you paid no further attention? A. I wondered where the track was.

'Q. But you paid no further attention to where the track was, is that right? A. I began wondering where the track was. In a second or two I heard the rumbling of the wheels, and then we were struck. * * *

'Q. And at a point 25 feet east of that crossing you can see all the way to Littleton, can you not? A. At night?

'Q. Let me put it this way: Your vision is unobstructed all the way to Littleton? A. Well, at night you can't see any farther than the lights are.

'Q. That is right, but there is no obstruction. A. That all depends where you are on the road. You have to be practically on the tracks Before you can see, there are so many obstructions and trees and houses. * * *

'Q. You saw the sign, you knew the tracks were there, and you proceeded to cross? A. I wouldn't say I knew a track was there. Why would I? The proper warning wasn't there.

'Q. Did you think there was a railroad track anywhere around this sign? A. I began looking for one.

'Q. As a matter of fact, the sign post had a cross post on it saying 'Look Out For The Cars,' didn't it? A. That is right.

'Q. And did you think then there was a railroad track anywhere around? A. I naturally thought there was one some place, but the rule was warning signs aren't to be on the left-hand side of the road. * * *

'Q. The sign on the other side of the street, on your left-hand, where were the tracks that it apparently related to? A. Well, they were on the--the sign, and then the tracks on.

'Q. And where would you expect to find the tracks, if you did any thinking about it? A. Well, we would have passed them, or be right on top of them.

'Q. Is that what you thought at that time? A. Well, I wondered where they were. We hadn't crossed any.'

Defendants' exhibits 1, 2 and 3 were identified by plaintiff Elizabeth Willy as photographs of the crossing and the immediate surroundings. They present irrefutable evidence that there were no obstructions, such as trees or houses, which would prevent a clear and unobstructed view of the railroad tracks for great distances south of the railroad crossing.

In both actions the specific acts of negligence with which the defendants were charged are:

'That the defendants were guilty of negligence and carelessness at the time and place aforesaid, in that:

'(a) Defendants operated said engine across said highway at a dangerous, reckless and excessive rate of speed.

'(b) Defendants operated said engine across said highway without reasonable lights for the purpose of apprising users of said highway approaching said track, of the approach of said train, in the night time.

'(c) Defendants operated said train along a track so constructed across said highway that its presence could not be reasonably observed by users of said highway.

'(d) Defendants operated an engine across said highway when the presence of said track was not marked by any sign in a place or position where the same should reasonably be to apprise users of said highway of the presence of said railroad track.

'(e) Defendants operated an engine along a track across said highway in such manner that the headlights from such engine would reasonably cause users of said highway to believe that the said train was not actually on said track.

'(f) Defendants operated an engine across said highway under conditions which prevented the driver of said automobile from observing the approach of said train when the driver stopped to look and listen for a train, thereby causing him to believe that a train was not being operated upon said track, and that he might safely pass.

'(g) Defendants operated a train across said highway without sounding a bell or other warning.

'(h) Defendant corporation did not place any warning sign or maintain any signal to reasonably indicate the presence of a track across said highway, and said defendants, knowing such condition, negligently and carelessly operated a train across said highway in manner and form hereinBefore alleged.' (Italics ours)

The defendants' answer to Elizabeth Willy's action contained three defenses: 1. A general denial; 2 contributing negligence on the part of Leonard J. Willy, the deceased husband of plaintiff Elizabeth; and, 3. contributory negligence on the part of Elizabeth Willy. The answer of defendants to the cause of action wherein Joyce M. Willy appeared by Elizabeth Willy, her next friend, contained two defenses: 1. A general denial; and 2. contributory negligence on the part of Leonard J. Willy, the father of the minor child. In the answer to the second cause...