Sprague v. Northern Pacific Railway Co., No. 2,769

No. 2,769 | Mont. | Feb 21, 1910

MR. JUSTICE I-IOLLOWAY

delivered the opinion of the eourt.

It is urged that the complaint does not state facts sufficient to constitute a cause of action, and that the evidence is not sufficient to sustain the verdict.

1. The attack upon the complaint proceeds upon the theory •that the pleading contains allegations from which the plaintiff’s negligence is plainly Inferable, and, since it does not plead exculpation from such negligence, it is insufficient under- the rule established in this state that, if the complaint shows that the act of the plaintiff was the proximate cause of the injury, it must set forth the facts showing that he was free from negligence. (Kennon v. Gilmer, 4 Mont. 433" court="Mont." date_filed="1882-01-15" href="https://app.midpage.ai/document/kennon-v-gilmer-6637447?utm_source=webapp" opinion_id="6637447">4 Mont. 433, 2 Pac. 21; Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454" court="Mont." date_filed="1909-10-23" href="https://app.midpage.ai/document/badovinac-v-northern-pacific-railway-co-8021324?utm_source=webapp" opinion_id="8021324">39 Mont. 454, 104 Pac. 543.) It is argued that the complaint discloses the peculiarly dangerous character of the crossing, by reason of the fact that a view of the railway track was obstructed from the public road until it reached within ten feet of the crossing, by the trees and brush, and this must be conceded. It is also insisted that the complaint shows that when Nelson and Chappel were ten feet from the crossing, their view of the track was not obstructed, and therefore it is said their coming into collision with the train on the track must be attributed to their want of ordinary care; for, it is argued, had they stopped ten feet from the track, they would have been in a place of safety, where they could have seen the approaching train, and could have avoided the accident. It is a legitimate inference to be drawn from the complaint that, for a space of ten feet before the track was reached at the crossing, a view of the track from the public road was unobstructed ; but we are not able to agree with counsel for appellant that the conclusion follows from this fact that the collision with the train must have resulted from the negligent act of Nelson and Chappel. They had an equal right with the railway company to use the crossing, and therefore there cannot be any inference of negligence on their part from the fact alone that they attempted to use it. If it could be said that it appears; from the complaint that, when Nelson and Chappel reached a point ten feet from the track, where they could see the approaching train, they were in a place of safety, then we might agree with counsel for appellant in their conclusion; but we cannot say, as a matter of law, that when a man is seated in a buggy to which is attached a team of horses, the horses proceeding toward the track, and the man in the buggy only ten feet from the track, he is in a place of safety. Whether he. would be or not is a question of fact for the determination of a jury p and this, too, notwithstanding the appellate court of Indiana, in Baltimore etc. Ry. Co. v. Abbegglen, 41 Ind. App. 603" court="Ind. Ct. App." date_filed="1908-04-28" href="https://app.midpage.ai/document/baltimore--ohio-southwestern-railroad-v-abegglen-7064822?utm_source=webapp" opinion_id="7064822">41 Ind. App. 603, 84 N. E. 566, treated a like question as one of law. We think the complaint is sufficient.

2. The evidence discloses that on the day in question Nelson and Chappell were coming from a point beyond Chestnut to Bozeman, driving in a covered buggy drawn by a team of horses, and were leading the team belonging to the plaintiff; that it was raining; that the road was muddy, and the horses and buggy made considerable noise; that for some distance east of the crossing a mountain stream ran between the public road and the railway track, and the waters rushing down this stream likewise made considerable noise; that the trees and brush along this stream obstructed a view of the track from the public road for a quarter of a mile or more east from the crossing; that when these men approached the crossing to a point within a distance of from ten to twenty feet of the track, their view of the track was then unobstructed; that they were expecting a train along at about that time; that the horses they were driving were gentle, and the men experienced in the handling of horses; that at a point from one hundred to three hundred feet before reaching the crossing, they stopped and listened for any approaching trains (they could not see the track on account of the trees and brush), and, not hearing any, they continued on. When from ten to twenty feet from the track, and when they first reached a point where a view of the track was unobstructed, they saw .the train approaching from the east, coming downgrade, running very fast, apparently coasting and making little noise, and distant from the crossing from fifty to seventy-five yards. Chappel, who was driving, immediately turned the driving team to the right; apparently in an effort to get away from the track, but the hind wheels of the buggy and the led horses were struck by the train, the horses killed, and the buggy wheels injured. In turning the driving team away from the track, one of the horses was forced into a barb-wire fence, and was injured. There is some evidence tending to show that from the point where the men stopped, to the point where they first saw the train, they were vigilant in listening for trains, and that the steam whistle on the locomotive drawing the train was not sounded, nor was the bell rung at any point within eighty rods before the crossing was reached. By showing a failure on the part of the railway company to have the whistle sounded at a point between fifty and eighty rods from the crossing, and the bell rung from the point where the whistle was sounded until the crossing was reached, the plaintiff established the negligence on the part of the defendant company. (Bevised Codes, sec. 4289; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 Pac. 140.)

But it is earnestly urged upon us that the evidence shows contributory negligence on the part of Nelson and Chappel, and many cases are cited which have to do with railroad crossing accidents. There is little, if any, disagreement as to the proper rules of law applicable in such cases, and it will not be necessary to review the decisions from other jurisdictions; for, in harmony with the great weight of authority, this court, in Hunter v. Montana Central Ry. Co., above, in considering section 908 of the Civil Code of 1895 (section 4289, above), which required the whistle to be sounded and the bell to be rung, said: “These requirements are for the benefit of the public, and persons traveling upon the public highways have a right to expect a compliance on the part of the railroad company. But failure of obedience on the part of the railroad company to the requirements of the statute does not excuse the citizen from the use of .at least ordinary diligence and prudence; so that if one, upon approaching a railroad crossing, intending to pass over it, fails ■to make a vigilant use of his senses—that is, to look or listen, and to stop for this purpose, if necessary, to learn if there is danger—and by reason of this failure tc exercise this precaution he is injured, then he contributes directly to such injury, and cannot be heard to say that the railroad company did him the injury, and should compensate him for its wrong. The injury in such case is attributable to the recklessness and want ■of care in the person himself.” Though directly implied in the language above, the following may be added: “The duty to look and listen requires the traveler to exercise care to select a position from which an effective observation can be made. The mere fact of looking and listening is not always a performance of the duty incumbent upon the traveler, for he must also exercise care to make the act of looking and listening reasonably effective.” (Elliott on Railroads, 2d ed., sec. 1166.)

These two declarations fairly cover the range of decisions cited by counsel for appellant. 'When the evidence in this case is tested by these rules, we think it cannot be said, as a matter of law, as was done in the Hunter Case, that the plaintiff’s own negligence contributed to the-injury which he sustained. The facts disclosed in the Hunter Case show such wanton negligence ■on the part of Hunter and his associates, which directly contributed to Hunter’s injury, that any decision of the case other than the one rendered would have done violence to one’s sense of justice and the most elementary rules of the law of negligence; while in this instance the evidence shows that Nelson and Chappel were apprehensive of danger; that they stopped at a point from one hundred to three hundred feet before reaching the crossing and listened for approaching trains; that they were vigilant in listening from that point until they reached a place where the track could be seen; and that as soon as the approaching train was, or could have been, observed, they made efforts to extricate themselves from their apparently perilous situation. Whether, in selecting the point which they did select to stop and listen for approaching trains, Nelson and Chappel exercised ordinary care to make their listening effective, and whether in doing what they did, from that point until the injury occurred, they exercised such care and prudence as reasonable men under like circumstances would have exercised, were questions of fact for the jury to determine, and with the verdict thereon we are not disposed to interfere.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.