183 P.2d 549 | Colo. | 1947
THIS is an action in tort for damages. The parties are here in reverse order of their appearance in the trial court and we hereinafter refer to them as plaintiff and defendant. *19
Plaintiff, twenty-five years age, with his family, operated a greenhouse near Englewood, Colorado. One of his duties was to haul coal by truck from the Monarch mine in Boulder county to his place of employment. About nine o'clock A.M. on February 25, 1942, he drove to the mine, loaded his truck with seven and one-half tons of coal and started to return to his home. He had made the trip thirty or forty times before. Crossing the railroad, a quarter of a mile from the mine, his truck was struck by defendant's passenger train and he sustained the injuries for which this suit is brought. The case was tried to a jury, verdict was for plaintiff, judgment was entered thereon and defendant brings the case here urging error on a number of points which we elect to consider under: (1) Contributory negligence; (2) speed of train; (3) crossing signals; and (4) obstruction of view.
1. Contributory Negligence. At the point of the accident the highway extends east and west and the railroad generally north and south intersecting the highway at an angle of 54 degrees plus. Plaintiff testified: Q. "If one gets up there within three hundred feet of the track, if he has open windows, he can see down the railroad all the way to the mine dump [about a quarter of a mile], could he not? A. "Yes." The train approached the crossing moving in a northeastly direction at a speed of twenty-five to forty miles per hour. Plaintiff in his truck was proceeding east on the highway and regarding his approach to the crossing he testified: "Q. So you came up at four or five miles an hour until you came close to the crossing and then you changed the gear and went down to a half a mile an hour? A. Yes. Q. When you were going four or five miles an hour — could you stop it within a foot? A. Yes, less than that."
[1, 2] As plaintiff approached the crossing, the train, by a comparison of its speed with his, was only a short distance away and in plain sight. Plaintiff testified that *20
he looked and listened for trains from the time he left the mine store, but that he did not see the approaching train, and in view of this testimony his counsel urge that it was solely within the province of the jury to weigh the evidence and determine the facts; but inWesterkamp v. Chicago B. Q. Ry Co.,
True, the facts in the Westerkamp case and the others, supra, are not exactly like those here presented, but the principle of law announced in those cases clearly applies in this. We are of the opinion that plaintiff's failure to look and listen before driving his truck upon the *21 railroad crossing was the proximate cause of his injury, and that he is not entitled to recover for injuries resulting from the collision.
[3, 4] 2. Speed of Train. Under our law any speed in the country is not per se negligence. We held inChicago, B. Q. Ry Co. v. Campbell,
[5] 3. Crossing Signals. There was a conflict in the evidence as to whether or not the locomotive whistle was blown and the bell rung for the crossing. We have held in a number of cases, however, that failure of the operator of a train to give warning signals at a crossing is no excuse for the failure of a motorist to look and listen. Chicago, R. I. P. Co. v. Crisman,
[6] 4. Obstruction of View. Interference with plaintiff's view caused by his own truck was no excuse for his failure to look for a train from a position and in a manner that would make looking effective. Regarding this situation plaintiff testified: "Q. Then it was the truck that kept you from seeing the train? A. Yes. Q. After you got within three hundred feet of the track? A. Yes. Q. The body of your truck and the cab of your truck? *22
A. Uh, huh. Q. And the load back of you? A. Yes." Plaintiff, knowing all the circumstances, should have taken such precautions as were calculated to inform him of the fact as to whether a train was approaching or not.Chicago, R. I. P. Ry. Co. v. Crisman, supra; Colorado S. Ry Co. v. Thomas,
The judgment is reversed and the case remanded with instructions to dismiss the case and enter judgment for defendant for costs.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE JACKSON concur. *23