Yearout v. Chicago, M., St. P. & P. R. Co.

• Decision Date: 05 August 1960
• Docket Number: No. 8806,8806
• Citation: 82 Idaho 466,354 P.2d 759
• Court: Idaho Supreme Court
• Parties: Clifford YEAROUT, Plaintiff-Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO., a corporation, Defendant-Appellant.

Page 759

354 P.2d 759

82 Idaho 466

Clifford YEAROUT, Plaintiff-Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO., a corporation, Defendant-Appellant.

No. 8806.

Supreme Court of Idaho.

Aug. 5, 1960.

Rehearing Denied Sept. 8, 1960.

Elder, Elder & Mitchell, Coeur d'Alene, for appellant.

McFarland & McFarland, Coeur d'Alene, for respondent.

TAYLOR, Chief Justice.

About 6:00 p. m., June 20, 1956, a truck owned and driven by plaintiff's (respondent's) son, was struck by defendant's (appellant's) train at a crossing on U. S. highway 95A in St. Maries. Plaintiff was a passenger, riding in the cab of the truck on the righthand side. The train approached the crossing on a righthand curve and from the right side of the truck. Both truck and train approached the crossing at a low rate of speed, approximating four to five miles per hour. The truck had nearly cleared the crossing when it was struck near the right rear wheels. Plaintiff was thrown against the windshield, suffering injuries to his head and neck, for which he sought and obtained a judgment in the trial court in the amount of $5,248.29.

Defendant brought this appeal, assigning as errors the rulings of the trial court denying its motion for nonsuit, motion for directed verdict, and motion for judgment notwithstanding the verdict, all on the ground that the proof showed contributory negligence on the part of the plaintiff.

The evidence does not indicate that plaintiff had any control, or right of control, over the driver in the management of the truck, nor that the occupants were engaged in a joint enterprise. Plaintiff produced evidence to the effect that there was brush, willows, and small trees growing in and upon the right of way of the defendant, adjacent to the track and highway, which obstructed the view of the occupants of the truck so that they could not see the approaching train, and also that the operators of the train did not ring a bell or sound a whistle, as required by statute. Defendant produced evidence to the effect that the bell on the diesel engine was ringing and the whistle was being blown, in full compliance with the statute at, and prior to, the collision; that the vegetation and brush between the highway and the track in the line of vision of the occupants of the truck during the last 150 feet of their approach to the crossing, was so low in height (4 to 5 feet) compared to the diesel locomotive (14 1/2 feet) that the view of the occupants of the truck was not obstructed; that the approaching train was clearly visible to the occupants of the truck while yet over 200 feet from the crossing; that the plaintiff failed to look for the approaching train, or to see what was plainly visible, or to heed what he did see if he did look. The statutes governing the duties of the operators of the train and the driver of the truck, in pertinent part, are as follows:

'A bell of at least twenty pounds weight must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road or highway, and be kept ringing until it has crossed such street, road or highway; or an adequate steam, air, electric or other similar whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of $100.00 for every neglect, to be paid by the corporation operating the railroad, which may be recovered in an action prosecuted by the prosecuting attorney of the proper county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomotives, trains or cars, when the provisions of this section are not complied with.' I.C. § 62-412.

'(a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within 50 but not less than 15 feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:

* * *

* * *

'4. An approaching railroad train is plainly visible and is in hazardous proximity to such crossing. * * *' I.C. § 49-747.

The failure of the operators of a train to give the statutory signal is negligence per se; likewise the failure of a driver of a motor vehicle to comply with the statute is negligence per se. The evidence was conflicting as to whether the whistle was blown and the bell was sounded. We are bound by the jury's finding against defendant on this issue. However, assuming the defendant did not give the statutory signal, such fact did not relieve the driver of the truck from his obligation to comply with duties imposed upon him by statute. Whiffin v. Union Pac. R. Co., 60 Idaho 141, 89 P.2d 540. In that case the duty of a driver approaching a crossing was stated as follows:

'A person approaching a railroad-highway crossing, a danger and itself a warning, is required to exercise reasonable care for his safety, and to look and listen from a place of safety, and if necessary so to do, stop, and look and listen from a point where his observation is effective, and from where had he looked he could have seen, or heard had he listened. He may not go onto the crossing without reasonably using his senses, and while in a place of safety must effectively look and listen, and make sufficient careful observation to ascertain whether he may safely proceed before going upon the track, in order to avoid any possible accident from approaching trains, and his failure to do so is not excused by the railroad company omitting its statutory duties. While he need not necessarily keep his eyes continuously upon the railroad track, where there is no obstruction the traveler is bound to see what is plainly visible. Anyone who fails to observe the above caution, or thoughtlessly goes upon a crossing, his mind not then being diverted by anything not under his control, or chargeable to the railroad company, or which should reasonably be guarded against by the railroad company, as a hazard at the crossing, is guilty of contributory negligence, depriving him of the right to recover for any injury occasioned thereby.' 60 Idaho at pages 154-155, 89 P.2d at page 546.

In Ralph v. Union Pac. R. Co., 82 Idaho ----, 351 P.2d 464, quoting from Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347, we again recognized the rule that neglect of the train operators to blow a whistle or sound a bell does not relieve a highway traveler of the consequences of his own negligence.

In Stowers v. Union Pac. R. Co., 72 Idaho 87, 97, 237 P.2d 1041, 1047, we said:

'The decisions of this court and of the courts of other states which require that the traveler must look attentively or effectively up and down the track before attempting to cross when a train is approaching stress that the traveler is chargeable with what he could have seen had he so looked and with hearing what he would have heard had he so listened; in other words, where he looks and listens but does not see or hear the approaching train which is in full view, Lawrence v. Denver & R. G. R. Co., 52 Utah 414, 174 P. 817, or which is plainly visible, Smith v. Oregon Short Line R. R. Co., 47 Idaho 604, 277 P. 570, it...