94 P.2d 651 | Mont. | 1939
Lead Opinion
The only evidence to support the alleged failure to blow the whistle and ring the bell is the negative testimony of plaintiff and her son, under most unfavorable conditions, and two other witnesses who admit they probably would not have heard the whistle or bell if blown or sounded. Under the circumstances, such evidence is wholly insufficient to prove such grounds of negligence or to make a question for the jury in the face of positive testimony of all the switch crew and of one other witness. (See 22 R.C.L. 1057; Grant v. Chicago M. St. P.R.Co.,
In Haddox v. Northern P. Ry. Co.,
Attention of plaintiff attracted by approaching truck or by snow: The mere fact, if it is a fact, that an approaching truck, or snow on sides of 21-foot cleared portion of street, attracted plaintiff's attention does not excuse her driving onto this track *96
without looking to the west immediately before doing so, especially when the truck turned east while she was 50 feet or more from this track. (Normandin v. Payne,
Effect of discredited testimony given by plaintiff: The plaintiff's own testimony so impeached and contradicted is governed by a well-recognized rule repeatedly announced and followed by this court, namely, that a "party testifying in his own behalf has no right to be deliberately self-contradictory and whenever he is so the courts are justified in judging his case from the version of his testimony which is least favorable to him." (Casey v. Northern P. Ry. Co., supra; Wilson v.Blair,
Standing locomotive no excuse for not looking: It is well settled in this state, by a long line of decisions, that a railway track is itself a warning of danger and that if a person steps or drives from a point of safety onto a railway track without making a vigilant use of his senses just before doing so, instead of at some remote point from the track, he is guilty of contributory negligence. (George v. Northern P. Ry. Co.,
If a railway track itself is such a warning of danger as to require a person to look immediately before going onto the same, how can this duty to look at such point be avoided or excused by the fact that a party, when 110 or 150 feet away, actually *97
discovers, over a string of ore cars, a locomotive headed towards the crossing, with smoke coming from the engine? In fact, it makes the duty to look all the more imperative for the traveler not only knows that a railway track — itself a warning of danger, is there — but, at that particular time a locomotive — the thing that makes the track dangerous — is on such track in the immediate vicinity of the crossing, with the engine smoking, thus showing that it is not a dead engine but one that may move at any instant. (Mehegan v. New York Central H.H.R. Co., 64 Hun, 637, 19 N.Y. Supp. 444, McFarland v. Chicago, M. St. P.R.Co.,
While his court has never distinguished the general rule of evidence that affirmative testimony is of a higher character and greater weight than negative testimony and recognized any exceptions thereto, it has held that while negative testimony is sufficient to make out a prima facie case, it is without value unless it is shown that deceased was in a position to hear, was attentive, and that the conditions were such that he would probably have heard if signals were given. (Rau v. NorthernP. Ry. Co.,
The question of law presented by the facts is: Did the respondent act as a reasonable person would have acted under the same or similar circumstances, taking into account the standing engine and the diversions which confronted her? We believe she did. In the case of Kirby v. Southern P. Ry. Co.,
We believe that to make the rule announced in Casey v.Northern P. Ry. Co., relied upon by appellant applicable, *99
it must appear from the testimony and physical facts under consideration on appeal that the party testifying in his own behalf was deliberately self-contradictory before this court is justified even under the rule laid down in Casey v. NorthernP. Ry. Co., in judging a case from that version of his testimony which is least favorable to him. The weight of authority on this question is set forth in the following cases:In re Hess' Estate,
Standing engine or train as affecting question of contributory Negligence: We believe the following cases and decisions represent the decided weight of authority on the question:United States Director-General v. Lanzinger, 269 Fed. 552;Dehardt v. Atchison, T. S.F. Ry. Co.,
Diversion of attention as affecting question of contributory negligence: (22 R.C.L., p. 1035; Lorenz v. Burlington etc. Ry.Co.,
Plaintiff, who had been familiar with the crossings for thirteen years, was proceeding north. She asserted that at or about a distance of 25 feet from and south of track No. 1, she looked east and west for the approach of locomotives or trains, but did not see any approaching, so proceeded to cross the tracks at 10 miles an hour. She said that at the time she looked she saw an engine on either track 6 or track 7, about 100 feet west of the crossing; that smoke was ascending directly above the engine so that she thought it was standing still. She claimed that thereafter no bells were rung nor whistle blown to warn her of a contrary condition. *101 When she was on track 6, the engine, moving at a slow rate of speed, struck her car and shoved it about 15 feet and injured her.
In her complaint plaintiff alleged numerous grounds of negligence on the part of the company, such as failure to blow the whistle for the crossing, failure to ring the bell or keep a proper lookout for automobiles, failure to have a yardman or trainman on foot to precede the engine, the violation of several ordinances and of certain rules of the railway company.
The defendants denied the acts of negligence, and affirmatively pleaded that plaintiff was guilty of contributory negligence for the reason that, when she was more than 150 feet from the sixth track from the south, the place of the accident, she had an unobstructed view of the tracks toward the west for a distance of about 335 feet, and that she traveled about 200 feet at a speed of about 10 miles an hour from the point 25 feet south of track No. 1 to track No. 6 without looking to the west, the direction in which she had seen the locomotive which she claimed was standing.
At the close of the evidence a motion for a directed verdict was made by defendants and denied by the court. A verdict was returned in favor of plaintiff for $3,000 and judgment entered accordingly. No motion for new trial was made, and the appeal is from the judgment.
The specifications of error tender three points: (1) That plaintiff failed to prove any of the acts of negligence alleged by her by any substantial evidence; (2) "That plaintiff was guilty of contributory negligence as a matter of law when driving unto the sixth track, as admitted by her on the stand, a distance of somewhere between 110 and 150 feet from the sixth track, without looking west to ascertain if said locomotive was approaching said crossing"; (3) "That if there was any negligence on the part of defendants, that the ordinary negligence of the plaintiff concurred therewith up to the moment of the collision and was a proximate cause of such collision."
Plaintiff claims that she established negligence in four particulars, and relies upon them, to-wit: Failure (1) to sound *102 whistle; (2) to ring bell for crossing; (3) to keep a proper lookout for automobiles; and (4) to ring bell before starting locomotive from standing point. Defendants assert that all of the grounds of negligence were either abandoned or no proof thereof offered, except as to the charge that the bell was not rung as the locomotive passed through the yards, and that the whistle was not blown for the crossing.
The accident occurred on February 25, 1937. There was some snow on the ground. Plaintiff and her young son, who accompanied her, claimed that there was much more snow than other witnesses described. They claimed that snow was piled up along the side of the road. The amount of snow was not very important except that plaintiff claimed that she met a truck as she was about to cross the tracks, and that her attention was absorbed in trying to pass it without getting into the deep snow. However, the truck turned off and never passed the car, and she was back in the road before the accident occurred, her theory being that her attention was diverted by another danger. Her exact testimony on direct examination was: "When I saw the locomotive it was just behind the semaphore, I mean a little west of it. I did not pay any further attention to that locomotive. The next thing that attracted my attention was a truck coming down the highway and I watched the truck to see if it were coming towards me and in preparing to meet it, I swung my car to the side of the road and then observed the truck driver giving a signal with his arm out, signaling that he was going to turn. I then swung back into the road again." On cross-examination she said: "When I was on the last track of the Great Northern and the first B.A. P. track I did look to the west and saw the locomotive standing. From that point on I did not look again to the west because of the fact I saw this truck coming down and I tried to avoid that."
The boy testified: "When I was on the last track of the Great Northern is when I looked over and saw the locomotive. From that time I was looking the other way and did not look over and see the locomotive again until it hit us." *103
The weather was cold — between 11 and 25 degrees above zero. In a signed statement made to an agent of the railway company just after the accident, plaintiff said: "It was quite cold at the time of this accident, and I had all of the windows in the car closed. There was no frost on any of the windows. As I approached this railroad crossing I did not look either to the west or to the east to see if there was any train or engine coming toward this railroad crossing. I had driven over this crossing for about 13 years and am familiar with it." At the trial she said the window on the left side, the side toward the locomotive, was down a couple of inches, and the one on the right side clear down. The boy testified at the trial for the first time and agreed with the later statement of his mother.
The testimony of the engineer and switching crew was positive as to the sounding of the whistle and the ringing of the bell. The engineer was asked the following question: "When you started east, did you give any signals, if so, where?" And he gave the following answer: "As you leave the freight house and get in the neighborhood of the Belmont Mine, as a rule, you sound one long blast of the whistle, I think the Belmont Mine is two blocks west of Garden Avenue, which would be something like 600 feet plus the width of the street. I sounded one long blast of the whistle. That is to call attention to the tower man that there is an engine approaching, wanting the board. This board is a board that controls the operation of the derail on the Northern Pacific tracks. I think that derail is between Garden Avenue and Warren Avenue. If I did not give the long blast and get this board adjusted, I could not go on east, could not go beyond that board. If we call for the board and the board is given to us, that is a clearing board, we answer by two short blasts of the whistle to let the tower man know that we have accepted the board and going to use it. Those blasts were given on this date. Those blastswere given as we approached Warren Street, the street west wherethe accident happened. Also on that date as we approached Garden Avenue, between the long blasts of the whistle calling for the board, I sounded a crossing whistle for *104 those two crossings there at the Belmont Mine. I mean the crossing just east of the Belmont Mine and the crossing east of the loading tipple — that would be Garden and Warren Avenue. As we made that movement, the bell was automatically ringing with air. I started the bell ringing from the time we left East Butte going to the freight house with this car. After delivering this car, this bell was never shut off, up to the time we collided with this car. After leaving the freight house on this movement east, I did not stop the locomotive at any point before the collision. I should judge I was traveling at about five miles an hour." The witness was corroborated by the other members of the crew and by at least one other witness who lived in the neighborhood. All testified that the bell was rung and the whistle blown.
All of the witnesses who testified for the plaintiff, including herself and her boy, and who assumed to speak on the question of the bell and the whistle, gave negative testimony. They testified that they were in more or less advantageous positions to hear, but that they did not hear the bell rung or the whistle blown. They did not assume to say as a positive fact that the bell was not rung or the whistle was not blown.
The effect of the changed testimony of the plaintiff with[1, 2] relation to the position of the car windows was to increase the probability of herself and her son to hear the whistle and bell. If the car windows were all closed, as she first stated, they were not as likely to have heard as they would have been if they were open in the manner described at the trial. The change in the testimony was important. It is apparent that plaintiff was seeking to avoid the adverse effect of the rule laid down in 22 Ruling Case Law, at page 1057, which is as follows: "It is a general rule, however, that as against positive evidence by credible witnesses to the ringing of the bell, or the sounding of the whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. A mere `I did not hear it' is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not *105 create a conflict of evidence justifying a submission of the question to the jury as one of fact."
This rule has been the subject of comment by this court, particularly in the cases of Grant v. Chicago, Milwaukee St.Paul Ry. Co.,
In the Rau Case, supra, the court made the following statement: "The statement of a witness that he did not hear such a signal is without value as evidence, unless it further appears *106 that he was in a position to hear, was attentive, and that the conditions were such that he would probably have heard such signal, if it had been sounded."
These cases announce the proper rule, as do also the following ones: Pere Marquette Ry. Co. v. Anderson, (7 Cir.)
It will thus be observed that under this rule plaintiff's testimony was insufficient to prove the alleged negligence. It is true that in this instance the boy and two other witnesses gave similar negative testimony, but this negative testimony was combated and contradicted by the positive testimony of five witnesses who stand unimpeached and supported by the circumstances in the case, which brings us to a proposition that has frequently confronted this court.
In Haddox v. Northern P. Ry. Co.,
Defendants rely upon the rule laid down in Casey v.Northern P. Ry. Co.,
Here the only reflection that may be cast upon the witnesses who testified as to the ringing of the bell and the blowing of the whistle is the fact that most of them were employees of the railway company, and, as the United States Supreme Court said, that is not enough to render their testimony unbelievable.
The application of the rule announced in the Casey Case is to be found in the fact that plaintiff gave conflicting testimony or made conflicting statements with relation to material facts, viz.: in her first signed statement she said she did not look to the west or east and made no mention of seeing a locomotive at all. In her complaint she said that she looked to the west only at a point 25 feet south of the first Great Northern track and saw no locomotive standing. At the trial she said she looked again between the third and fourth tracks and saw the locomotive. In her deposition taken before the trial she said that the engine was either standing still or almost standing still. She explained that her reason for thinking so was that the smoke was going straight up. We have already adverted to the fact that her testimony was conflicting and contradictory on the question of the conditions of the windows of *108 the car. The only testimony in the record as to the locomotive being at a standstill at the time the plaintiff approached the track is this last statement that she made. There is no other testimony that the locomotive had stopped, while on the other hand all of the members of the train crew testified that the engine was moving slowly — about 4 1/2 or 5 miles an hour — all of the time involved. It is obvious that a starting signal by the engineer with the whistle was not required if the engine was moving all the time. The contention that it was not given was of necessity predicated upon the theory that the engine was standing still when plaintiff first saw it, and that thereafter it started up without a starting signal. It thus becomes obvious that the questions as to the constant ringing of the bell and the crossing signal are about the only things left upon which plaintiff's theory could be predicated.
To us the question whether the engine was standing still or[4] moving slowly seems unimportant. Under any of the theories advanced plaintiff admitted knowledge of the fact that there was a locomotive standing "or almost standing still" near the crossing, fired up, with smoke ascending and in dangerous proximity to the crossing. This should have been enough to put her on her guard. The fact that there was an approaching automobile did not justify her in giving her whole attention thereto. (Normandin v. Payne,
The duty resting upon plaintiff was well described by this[5] court in George v. Northern P. Ry. Co.,
The circumstances of this case were not the same as an[6, 7] ordinary crossing accident. Here were seven tracks of three different railways. In fact, the scene of the accident was really in railroad yards where the greatest degree of care and caution should have been observed. A case in point is Easley v.Pennsylvania R. Co.,
Here plaintiff admitted that she saw the engine but concluded that it was standing still, and thereupon gave no further attention to it on the theory that it would signal before starting. The jury could not disregard the effect of this admission, which, in our opinion, brings the case squarely within the rule of the cases just cited.
The judgment is reversed with instruction to the district court to dismiss the action.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE MORRIS concur.
Dissenting Opinion
I dissent. I believe the facts of this case do not warrant the conclusion of the majority that the testimony on behalf of the plaintiff was mere negative testimony within the rule stated in the majority opinion. There is more here than a mere "I did not hear it" statement.
The true rule to be applied as to negative testimony under facts like these was stated by this court in Riley v. NorthernP. Ry. Co.,
The majority cites Grant v. Chicago, M. St. Paul Ry.Co.,
The Rau Case has no force in sustaining the conclusion of the majority. The rule was stated in that case, but the court did not hold that the negative testimony was of such a character that it had no evidentiary value and should, therefore, be excluded; but the court said: "Here we have testimony of negative character of but little evidentiary value, in view of the surrounding circumstances." And the court goes on to say: "Conceding the sufficiency of such negative testimony to establish the fact, yet the statute did not excuse the deceased from the exercise of at least ordinary care for his own safety." The Rau Case was decided on the basis of the contributory negligence of the deceased, and was in no way based on the theory *112 that the evidence of the witnesses was of such a negative character as to make it valueless.
Mrs. Sullivan and her son were within at most 200 feet of the locomotive and traveling at a low rate of speed. They both testified on the stand that the windows of the car were open and that their hearing was good. By that testimony it seems to me clear that they have shown that the facts fit what was said in the Riley Case, and if what the majority has said stands, then I do not see how in any case the non-existence or non-happening of any thing or event can ever be proven, if there is positive testimony that it did exist or happen. The witnesses were in the very position of the traveler whom the signal was meant to warn. If they could not hear it had it been given, it would seem the requirement that any signal be given is a foolish one, and every traveler must proceed on the assumption that none will be given because even if given it would be so weak that he could not hear it.
Now let us see how strong the positive testimony on this point and others is. First, it is testified by defendant's witnesses that the engine did not stop; yet there is abundant testimony by them that as they approached the semaphore they had to signal a towerman some two blocks away for the board, and that until they got it they had to wait before proceeding past the semaphore tower. In other words, they testified, in effect, that it was the usual practice, or at least it often happened, that they had to stop right where the plaintiff and her son said they were stopped. The witness Stewart is the only one who testified that he did not stop between Warren and Garden Avenues; while the witness Noonan, one of the crewmen, says: "As I recall it the engine gave one long whistle for the semaphore and got it and it was answered by two and then we proceeded on down." That testimony certainly raises the inference that they did stop west of the semaphore and did not proceed until the semaphore arm was raised. The same inference is raised by the testimony of the witness Hadrath, a member of the train crew. *113
As to what whistles were blown, and where and when, there is also conflict among the defendant's witnesses. The engineer Stewart testifies to a series of short, sharp blasts just a moment or two before the collision. No other member of the crew testifies to this. They all say that he gave just the usual crossing signal. None of them, except Stewart, presumes to say where the signal was given, and much of their testimony indicates that no signal at all was given after crossing Warren Avenue. Instead of their testimony being clear, convincing, uncontradicted and corroborated, it is confusing, unconvincing and uncorroborated, and most of it starts with, "As I remember it," or "As I recall it," or "We usually do this or that."
The testimony represents the typical situation of a clear conflict in the evidence, and the district court properly submitted the matter to the jury. The circumstances support the testimony of the witnesses for the plaintiff as well as they support the testimony of defendant's witnesses.
The majority opinion states that this court has consistently adhered to the rule that questions of credibility are for the jury alone. That may have been true in the past, but the majority opinion apparently signals the end of that adherence when it says that the testimony of the plaintiff and her witnesses is of the type considered in the Casey Case,
The majority, in applying the rule of the Casey Case, finds contradiction between her first statement and her testimony on *114 omissions in the first statement, the one prepared by the agent of the company. As I have said, under the circumstances that statement should receive little or no consideration by this court or any other, but even if it is considered I cannot see that an omission to say that she saw the locomotive would show the type of contradiction contemplated in the Casey Case.
Much is made of the fact that in the signed statement it is said her car window was closed on the side from which the locomotive approached, while on the stand she testified it was open. Her testimony on the stand was corroborated by the clear, convincing testimony of the other passenger in the auto, her son. Nowhere in her testimony was there a single element of that willful misstatement, contradiction and general fitting of the testimony to suit the developments of the case that exist in theCasey Case, and to discredit her testimony as is done by the majority does violence to every rule affecting the question of the credibility of the witnesses and announces to the litigants, the bar and the courts of Montana that it shall be the duty of the trial court to exclude the testimony of every witness as soon as any slight variance occurs between what a witness has said some time in the past, and what he says on the stand, and his testimony must be excluded even where he failed to say something in the past and later says it on the witness stand.
I cannot see that Normandin v. Payne,
I agree with what the majority says as to the duty of the traveler in approaching a railroad crossing; however I think the rule is better stated in Everett v. Hines,
One of the circumstances which must be considered in determining the duty of the plaintiff here is the presence of a standing locomotive. On appeal we must take the most favorable view of plaintiff's testimony and must conclude that the locomotive was standing still. The rule is that the presence of a standing locomotive discovered by plaintiff reduces the degree of care she must exercise, as she may rely on the engineer giving the necessary signals before starting up the engine. The leading and almost universally accepted case on this point is UnitedStates Director General of Railroads v. Zanzinger, (4 Cir.) 269 Fed. 552, 554. There a pedestrian saw a standing locomotive and, relying on the signals being given, proceeded on to the crossing without again looking at the engine. The court said: "But the degree of intentness of looking and listening requisite to constitute due care depends upon circumstances. * * * A man of ordinary prudence would hardly hesitate to go over a crossing near to a passenger train stopped at a station, relying upon his attention being arrested by the invariable bell signal of starting. The presumption that an engine of a standing train will give warning before going over a crossing is greater than if the train were running. * * *" To the same effect see Louisville Nashville R. Co. v. Cooper, 65 S.W. 795, 23 Ky. Law Rep. 1658, wherein the court said: Appellee had a right to assume that in moving its train appellant's servants in charge of it would give proper signals by bell or whistle before running *116
upon the crossing, and when she saw it standing still 150 feet away we think it was properly left to the jury to determine whether she exercised such care as might reasonably be expected of a person of ordinary prudence, situated as she was." The rule is also so stated in the able dissent of Justice Straup inWilkinson v. Oregon Short Line Ry. Co.,
I have examined carefully the cases cited in the New York opinion, beginning with the case of Mehegan v. New YorkCentral H.R.R. Co., 64 Hun, 637, 19 N.Y. Supp. 444, next to the last paragraph, and find but two of the cases in point, those being the early New York case and the Utah case I have just mentioned. It is to be noted that there was a dissenting opinion in the Utah case. The great weight of authority and the modern rule is that contained in the Zanzinger Case, supra, on the effect of a standing train on the duty of the pedestrian.
I can come to no other conclusion than that the learned district judge was correct in his rulings on all of the points covered in the majority opinion, and the points on which the lower court is reversed. Instead of indulging any presumption in favor of the correctness of the action of the lower court, the law is strained and the testimony is viewed in the worst light to effect the reversal of the lower court. That court properly left to the jury the determination of the weight to be given plaintiff's testimony, and correctly left to the jury the determination of the existence or non-existence of contributory negligence on the part of plaintiff. There was ample evidence to sustain the verdict and the lower court should be sustained.
Dissenting Opinion
I concur in the dissenting opinion of MR. JUSTICE ERICKSON.
Rehearing denied October 14, 1939. *117
