155 F.2d 842 | 10th Cir. | 1946
These are railroad crossing cases. Fred Golay and Ruth Golay, husband and wife, sustained personal injuries as the result of a collision between the automobile in which they were riding and a passenger train of the Chicago and Northwestern Railway Company. Separate actions for damages were instituted. The issues joined were negligence and contributory negligence. The actions were consolidated for trial before the court and a jury, resulting in separate verdicts and judgments for plaintiffs. Defendant appealed, and the cases are here on a single record and were submitted together. For convenience, plaintiffs in the trial court will be referred to as plaintiffs or by their individual names, and the defendant will be referred to as the company.
The accident occurred at the point where Elk Street in Casper, Wyoming, and the main track of the company intersect. Two other tracks cross Elk Street. They are denominated in the record as the industrial and the spur tracks, respectively. The main and the industrial tracks are parallel and extend east and west, while the spur track runs in a somewhat southeasterly and northwesterly direction. The industrial track is about 13 feet north of the main track, and the spur track is about 87 feet .north of the industrial track or about 100 feet north of the main track. Elk Street extends generally north and south. Yellowstone Highway runs generally east and west and is located north of the tracks. Elk Street and Yellowstone Highway intersect at a point approximately 400 feet north of the main track. The country is generally flat and open. The area east of the street, and that west of the street and south of the tracks, was practically vacant and the view unobstructed. A
The court submitted to the jury the question whether the failure of the company to maintain gates, flagman, or flash signal at the crossing constituted negligence which was the proximate or one of the proximate causes of the accident. The submission of that question is challenged on the ground that there was no substantial evidence showing that the crossing was an unusually hazardous one which reasonably required the maintenance of any of such protective facilities. No statute of Wyoming has been called to our attention which requires a railroad company to provide a crossing of this kind with any special warning, and there is no general duty at common law to maintain any particular facilities of that kind at a crossing. But the rights of the general public and the rights of the railway company at street crossings are mutual and reciprocal; and, although common convenience gives to trains precedence over automobiles in the use of crossings, it is upon the condition that the company will give due warning of the approach of its trains in order that those in automobiles may stop safely and wait for the trains to pass. What constitutes reasonable and timely warning depends upon the circumstances and surroundings. For instance, the vigilance and care must be greater at crossings in a populous city or town where the travel is great than at ordinary crossings in the country. And, as a general rule, whether reasonable care and prudence require under all the circumstances that special warning facilities be maintained at a crossing in a city or town is a question of fact for the jury. Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chesapeake & Ohio Railway Co. v. Steele, 6 Cir., 84 F. 93; Evans v. Erie Railroad Co., 6 Cir., 213 F. 129; Northern Pacific Railway Co. v. Moe, 8 Cir., 13 F.2d 377;
Here, the traffic on Elk Street was quite heavy, especially during school. The children of about 200 families attended Elk Street School, and about half of them crossed the tracks in going to and coming from the school. Some of them walked and others traveled by school buses which crossed the tracks four times a day. Employees of two oil companies crossed the tracks in going to and from their work, and others used the street as a highway. The evidence presented sharp conflicts in respect to the distance of the building from the street, the extent and height of the stacks of material and equipment, the location of the gondola car, particularly its distance from the street, the location of the truck and tank in relation to the gondola car and the street, and the extent to which these structures and objects obstructed the view of one coming along the street from the north in seeing a train approaching from the west. We shall not stop to detail the testimony of the various witnesses who testified concerning the matter. It is enough to say that whether all of the circumstances in their composite effect were enough to require the company in the exercise of ordinary care and prudence to maintain special warning facilities at the crossing was a question for the jury.
Another issue of negligence submitted to the jury was whether the train approached the crossing at an excessive rate of speed, and if so whether the speed was a proximate cause of the accident. The company contends that the submission of that issue was error because there was no substantial evidence on which to predicate its submission. There was a conflict in the evidence as to the speed of the train. The evidence offered by plaintiffs tended to show that the train was moving at 30 to 35 miles per hour and that its speed was increasing, while the evidence of the company fixed the speed at 15 to 18 miles,per hour. It was the province of the jury to resolve the conflict, and the general verdicts amounted to a determination of it in favor of plaintiffs. But the company argues that even though the train was moving at 30 to 35 miles per hour, and even though that speed was excessive, the speed was not the proximate cause of the accident. Excessive speed of an automobile or a train, considered alone and apart from other circumstances, is not always necessarily negligence which proximately brought about the accident resulting in injury, or contributed to it. Speed, unrelated to other circumstances, sometimes is merely a condition of the accident, remote in the chain of causation, and therefore does not constitute negligence with resulting liability in damages. O’Mally v. Eagan, 43 Wyo. 233, 2 P.2d 1063, 77 A.L.R. 582; Burlie v. Stephens, 113 Wash. 182, 193 P. 684; Whalen v. Dunbar, 44 R.I. 136, 115 A. 718. But in a case of this kind, what amounts to excessive speed of a train in passing over a crossing depends upon the surrounding circumstances. The speed at which the train approached the crossing, the volume of traffic on the street, the nature and extent of the obstructions of view on the west side of the street, and the other circumstances which existed at the time, considered in their totality, presented an issue for the jury as to whether the speed of the train was excessive, and if so whether it was the proximate cause or one of the proximate causes of the accident. Bilton v. Southern Pacific Co., 148 Cal. 443, 83 P. 440; Young v. Pacific Electric Railway Co., Cal. Sup., 279 P. 438; St. Louis-San Francisco Railway Co. v. Rundell, 108 Old. 132, 235 P. 491; Herrell v. St. Louis-San Francisco Railway Co., 322 Mo. 551, 18 S. W.2d 481; Pentecost v. St. Louis Merchants’ Bridge Terminal Railroad Co., 334 Mo. 572, 66 S.W.2d 533.
The third issue of negligence submitted to the jury was whether the whistle was sounded or the bell rung as the train approached the crossing. The company contends that there was no sufficient evidence to take the case to the jury on that issue. The testimony of plaintiffs was in substance that beginning shortly after they
By instructions to which no exceptions were taken, the court submitted to the jury the issue of contributory negligence on the part of the plaintiffs and the general verdicts in effect resolved the issue in their favor. But the company contends that each of them was guilty of contributory negligence as a matter of law in failing to see the train, in the failure of Fred Golay to stop the automobile before reaching the crossing, and in the failure to Ruth Golay to warn her husband of the approach of the trian. The duty of a person approaching a railway crossing to look and listen before crossing the track has been iterated and reiterated so many times that even a brief review of the many cases enunciating the rule would only extend the length of this opinion without serving any useful purpose. And one driving an automobile and those riding with him are obligated to use their eyes and seasonably observe that which is open and apparent, to take notice of obvious dangers, and to govern their conduct as a reasonably careful and prudent person would in the same or similar circumstances. Failure to do that constitutes negligence. But care and vigilance on the part of those traveling the highway in an automobile vary according
The facts preceding and attending the accident have been reviewed and need not be detailed again. In a case of this kind, contributory negligence seldom depends upon a single fact or circumstance. Ordinarily, it depends upon many relevant facts and surrounding circumstances, and upon inferences fairly to be drawn from the testimony produced. Viewed in that light, we find no warrant for holding that reasonable minded persons would necessarily reach the conclusion that plaintiffs were at fault in failing to see the train in time for the automobile to be stopped before reaching the crossing, that Fred Golay was at fault in failing to stop the car, and that Ruth Golay was likewise at fault in failing to warn her husband of the approach of the train. In short, we think the question of contributory negligence was for the jury. Grand Trunk Railway Co. v. Ives, supra.
The company tendered and the court excluded the testimony of a witness that a few days prior to the trial he made certain tests in stopping an automobile traveling south on Elk Street toward the crossing; and that moving at certain rates of speed, the car was stopped within certain distances, respectively. The testimony was tendered in support of the plea of contributory negligence, and its purpose was to show that under the facts and circumstances developed in the cases, the automobile of plaintiffs could in the exercise of ordinary care have been stopped before reaching the crossing. The testimony was admissible. Truva v. Goodyear Tire & Rubber Co., 124 Wash. 445, 214 P. 818; Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; Pool v. Day, 143 Kan. 226, 53 P.2d 912; Beckley v. Alexander, 77 N.H. 255, 20 A. 878; Crecelius v. Gamble-Skogmo, Inc., 144 Neb. 394, 13 N.W.2d 627. But a careful examination of the entire record convinces us that its exclusion did not affect in any manner the ultimate verdicts of the jury and that the error was harmless.
The judgments are severally affirmed.