278 P. 809 | Utah | 1929
Plaintiff recovered a judgment against the defendant on account of damages to plaintiff's automobile. The defendant appeals, and seeks to have the judgment reversed, because, as claimed by it, the evidence shows, as a matter of law, that plaintiff's negligence was the proximate cause *202 or a proximate contributing cause of the injury complained of by the plaintiff. The sufficiency of the evidence to support a verdict in favor of the plaintiff was questioned by the defendant in the trial court by a motion for a directed verdict in its favor at the conclusion of the evidence and by a motion for a new trial. Both motions were denied. These rulings are assigned as error and relied upon for a reversal of the judgment.
The defendant is a corporation engaged in operating a steam railroad. The complaint is founded upon the alleged negligence of the defendant in backing its cars in the nighttime without any signal or warning over a public highway where such highway crosses the railroad tracks of the defendant at Midvale, Salt Lake county, Utah. Defendant's answer denies negligence on its part, and alleges that the damage to plaintiff's automobile was caused by the negligence of the plaintiff in failing to look and listen for the approach of defendant's train before attempting to cross its railroad tracks.
On the night of November 24, 1926, the plaintiff was driving his automobile from Bingham easterly towards Salt Lake City. He was accompanied by one J.H. Boughan. In the city of Midvale the highway over which the plaintiff was driving crosses the railroad tracks of the defendant company. At the intersection of the highway and the railroad tracks the defendant 1 maintains a double main track and about three tracks that are used for switching. While plaintiff was crossing these tracks, his automobile was struck by the rear end of a train that was being backed over the crossing. The collision so damaged plaintiff's automobile as to render it almost valueless. It is made to appear that a few minutes before the accident defendant's train, consisting of an engine and twelve cars, was moved to the south of the intersection of the highway and the railroad tracks so that traffic could proceed along the highway over the railroad tracks. After being moved, the train was stopped and left standing, so *203 that the car on the rear end of the train was between 25 and 40 feet south of the crossing. The engine was on the south end of the train. An engineer and a brakeman were in charge of the train. The brakeman was at the rear end of the train, and, by means of a lighted lantern, signalled the engineer when and in what direction to move the train. There were no lights on the rear end of the train. Just before the collision, the brakeman signalled the engineer to back up. It was while the train was being backed over the crossing that the collision occurred. J.H. Boughan, was riding in plaintiff's automobile at the time of the collision, testified in substance as follows: That the plaintiff stopped his automobile about 8 or 10 or 12 feet from the railroad track; that the night was very dark; that, before proceeding to cross the railroad track, he looked and listened to ascertain if a train was approaching the crossing; that apparently no train was moving on the railroad track; that plaintiff started up his automobile slowly, and just as it got onto the first or west track it was hit by the railroad car; that it looked like the automobile and train must have started to move at about the same time; that the automobile was not moving to exceed 2 miles per hour when it was struck; that no signal or warning was given before the train backed up. The testimony of the plaintiff is to the same effect as that of Boughan, except that plaintiff did not know how fast his automobile was moving at the time of the accident. Other witnesses testified that plaintiff either stopped, or nearly stopped, his automobile just before he proceeded to cross the railroad tracks. It further appears that there were street lights in the vicinity of the intersection of the railroad and the highway, but the distance of the lights from the crossing is left uncertain. The evidence is in conflict as to whether or not the crossing was sufficiently lighted to enable one approaching it to discern a train of cars at any appreciable distance on the night of the accident. There were no buildings or other objects to obstruct the view of the plaintiff as he approached *204 the crossing. The evidence offered by the defendant conflicts with that of the plaintiff in a number of particulars, but, as this is a law action, it is not within our province to weigh conflicting evidence.
The defendant concedes that the evidence in this case is sufficient to support a finding by the jury that the defendant was negligent on the night in question, and that such negligence was a proximate contributing cause of the injury complained of. It is contended, however, that the evidence adduced at the trial shows, as a matter of law, that the plaintiff was negligent, and that his negligence proximately contributed to the collision. In support of such contention the following cases are cited: Mann
v. Belt Ry. Stockyard Co.,
"A person before attempting to cross a railroad track, and when an approaching train is in full view, is chargeable with seeing what he could have seen if he had looked, and with hearing what he would have if he had listened. In other words, where he apparently looks and listens, but does not see or hear the approaching train, it will be presumed that he did not look or listen at all, or, if he did, that he did not heed what he saw or heard."
We are of the opinion that the facts in the instant case do not bring it within the rule announced in the cases cited by the defendant. The evidence here shows without conflict that the defendant's train began to move only a very short time before the accident. There is a vast difference in attempting to drive over a railroad track when a train is approaching 2 a crossing and attempting to pass over a railroad track when cars are merely *205 standing near the crossing. It is not improbable that the defendant's train began to back up at or very near the time plaintiff started his automobile in motion. It appears that it was dark at the time of the collision. One witness described the night as very dark. There was no light on the rear end of the train. Under these circumstances, it cannot be said, as a matter of law, that the plaintiff is presumed to have seen the cars standing on the side of the crossing. Much less can it be said that he saw the cars in motion in sufficient time to avoid the collision. The train backed up slowly. It is quite possible that the occupants of the automobile could not have heard the movement of the train before the collision occurred. They testified they did not hear any train approaching the crossing.
The respondent contends that the trial court properly submitted to the jury the question of whether or not the plaintiff was guilty of contributory negligence. The following authorities cited by respondent support, or tend to support, such contention: Hearth v. Railroad Co.,
The judgment is affirmed. Respondent is awarded his costs.
CHERRY, C.J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.
