Westerkamp v. Chicago, Burlington & Quincy Railway Co., 41 Colo. 290

Westerkamp v. Chicago, Burlington & Quincy Railway Co.

41 Colo. 290 | Colo. | 1907

Mr. Justice Gabbert

delivered the opinion of the court:

Although the evidence establishes negligence on the part of the defendant, plaintiff cannot recover if his failure to exercise that degree of care which a *295reasonably prudent person would have exercised under similar circumstances was the proximate cause of his injury.—C. R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30. The important question, therefore, to determine, is: whether or not the testimony established, as a matter of law, that plaintiff was guilty of negligence, but for which he would not have been injured.

He knew a train was about due, and testified that distant about 190 feet from the track he com.menced looking towards the east, and, when within fifty or sixty feet of the crossing, stopped his team, and looked and listened for an approaching train from that direction; that he did not hear or see one; that he noticed switch and other lights from a quarter to half a mile distant, in the direction he looked; that as he approached the track he continued to look and listen until within twenty-five or thirty feet of the crossing,' but neither saw nor heard the train which collided with him, but did see the switch and other lights above referred to. He then drove upon the track and was injured. Having testified that he stopped, looked and listened for an approaching train, and not discovering one, his counsel invoke the rule that the credibility of his statements in this respect should have been submitted to' the jury. This rule is not applicable; where there is but one inference which can reasonably be drawn from the undisputed facts. At the point where plaintiff first stopped there was nothing to obscure his view along the track towards the east for a distance of 2,000 feet or more, other than the trunks of a few leafless trees, and a a couple of telephone poles, which would have done nothing more than momentarily obscure the headlight of the locomotive when a tree or pole was in the direct line of his vision and the headlight. He did notice the other lights referred to; and heces*296sarily at this time- the headlight was rapidly and continually changing its position. It was burning brightly. This is established by witnesses on his own behalf, one of whom crossed the track between 100 and 200 feet in advance of him, and discovered the approach of the train by its headlight, and estimated that the train was from • a quarter to- half a mile distant. The other witness noticed the same condition from a different point of view at the time' when, according to all the testimony, the plaintiff himself was so situated that if he had looked in the direction of the approaching train, he, also, should have recognized the headlight in question by its movement towards him. He says he continued to look until within twenty-five or thirty feet of the track, but did not see the train approaching from the east. Prom this point, according to- the- undisputed testimony, there was nothing whatever to- obstruct his view for an indefinite distance to the east. At this time the approaching' train, by a comparison of its speed with that he was traveling, could not have been distant more than 250 or 300 feet, and yet, according to his own statements, he did not hear the rumble which it must have made in' crossing the bridge which it had just passed over, or distinguish its headlight from that of other lights shining at a quarter to a half mile beyond. He knew a train was about due from the east over the track he was about to cross.

In such circumstances it seems incredible that he looked toward the east, as he says he did, and failed to notice the rapidly moving headlight when he first began to look, or its proximity when he was within twenty-five or thirty feet of the track, when the headlight must have been so distinctive by reason of its brilliancy and relative position to- the other lights' beyond of which he speaks. Clearly, although *297it may have been, cloudy and foggy at the time, these conditions were not sufficient to obscure the brilliant headlight of the locomotive when he first looked, or when it was but 250 or 300 feet distant, when lights of less power in its near vicinity were discernible at the time he first looked, and when he last looked, from a quarter to half a, mile beyond. From all the facts and circumstances, there is but one conclusion deducible, viz., he did not look; because, if he had, he could not have failed to discern the train approaching the crossing he was about to drive over.

Where a physical situation renders the right of a matter clearly beyond all reasonable controversy, there is no' conflict to be solved by a jury, because no^ just verdict can be rendered contrary to all reasonable probabilities. In such circumstances the testimony of a witness to that which is physically impossible must be rejected, and a court will treat as unsaid by a witness that which, in the very nature of things, could not be as said. A trial court should not submit to a jury the determination of a fact about which, from all the testimony, there can be no dispute. Plaintiff not having looked for the approach of the train which struck his wagon, failed to exercise that degree of care which he should, and it is beyond dispute that such failure was the proximate cause of Ms injury. The trial judge was, therefore, right in directing a verdict for the defendant.—Northern Pacific Ry v. Freeman, 174 U. S. 379; Blumenthal v. B. & M. R. R. Co., 97 Me. 255; Day v. B. & M. R. R. Co., ibid., 528; Swart v. N. Y. Cent. & H. R. R. R. Co., 80 N. Y. Supp. 906; Marland v. Pittsburgh & L. E. R. Co., 123 Pa. St. 487; Swart v. N. Y. Cent. & H. R. R. R. Co., 81 N. Y. App. Div. 402; Fiddler v. N. Y. Gent. & H. R. R. R. Co., 64 N. Y. App. Div. 95; Hook v. Mo. Pac. Ry. Co., 162 Mo. 569; Dolfini v. Erie R. R. Co., 178 N. Y. 1; C. & N. W. Ry. Co. v. Andrews, *298130 Fed. 65; Marshall v. Green Bay & W. R. Co., 125 Wis. 96; C. & E. I. R. R. Co. v. Kirby, 86 Ill. App. 57; Fiddler v. N. Y. Cent, & H. R. R. R. Co., 71 N. Y. App. Div. 721.

Many cases are cited by counsel for plaintiff in support of their contention that the question of his negligence should have been submitted to the jury. These cases, when analyzed, in no sense conflict with the conclusion we have reached, 'because it appears therefrom that the testimony bearing on the subject of the want of care of the party injured was either conflicting or of a character from which different inferences might reasonably be drawn, on that question ; or it appeared that the injured party had made a mistake with respect to the approach of a train in such circumstances as made it necessary to leave it to a jury to determine whether or not such mistake was the result of a failure to exercise proper care.

It is also' contended on behalf of plaintiff that he might have assumed that the train would not approach the crossing at a greater rate of speed than that allowed by the ordinances of Grlobeville. This question is not presented, because plaintiff says he did not see the train which collided with his wagon; consequently, he cannot be heard to say that in passing over the crossing in question he relied upon being able to do so safely under the belief that the defendant would observe the ordinances in operating its trains. A party cannot excuse his act by reliance upon that which, according to his own statement, is not the fact.

The judgment of the district court is affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Campbell concur.