255 P. 610 | Colo. | 1927
Wright had a verdict and judgment against Freeman and Boettcher as receivers of the Denver Salt Lake Railroad Company, in an action for the collision of an engine with his automobile truck.
The occurrence was at the crossing of the North Washington road and the railway company's tracks, outside the Denver city limits. The plaintiff was familiar with the crossing, was going south, defendant's engine was backing west and hit the truck on the crossing. The negligence *398 charged is excessive speed, and failure to whistle or ring. The defendant's motion for a directed verdict was denied.
Plaintiffs in error claim that defendant is shown to be guilty of contributory negligence. We think they are right. The case cannot be distinguished from GreatWestern Ry. Co. v. Lee,
That he was wrong about his inability to see until so near the track is proved by the photographs in evidence, but his case is not thereby helped because it still conclusively appears that he did not keep such control of his machine as is required by Great Western Ry. Co. v. Lee,supra; Headley v. D. R. G. Co.,
The judgment is reversed with directions to dismiss the case.
MR. CHIEF JUSTICE BURKE, MR. JUSTICE SHEAFOR and MR. JUSTICE WHITFORD concur.
Reporter's Note. As to duty of an auto driver when approaching a railroad crossing, see B. O. R. R. Co. v. Goodman, decided by the United States Supreme Court, October 31, 1927. *399