Freeman v. Wright
255 P. 610
Colo.
1927
Check Treatment
Mr. Justice Denison

delivered the opinion of the court.

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 neg *398 ligence 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 Great Western Ry. Co. v. Lee, 70 Colo. 140, 198 Pac. 270. There it was held that plaintiff was negligent because he approached within forty feet of the track at a speed that rendered it impossible for him to stop before he reached the crossing. So here the plaintiff testified that because of trees and foliage he could not see, and did not see the engine till he got within five (sic) feet of the crossing; that he then tried to stop but was unable. This defeats him. He should have approached at such speed that he could stop after he saw the engine and if the situation was such that he could not do that he should have stopped before he saw it and looked and listened.

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., 60 Colo. 500, 154 Pac. 731, and Nucci v. C. & S. Co., 63 Colo. 582, 169 Pac. 273. See also Gunby v. C. & S. R. Co., 77 Colo. 225, 235 Pac. 566; A. T. & S. F. Ry. Co. v. Page, 76 Colo. 10, 227 Pac. 840.

The judgment is reversed with directions to dismiss the case.

Mr. Chief Justice Burke, Mr. Justice Sheafob and Mr. Justice Whitfobd concur.