Incret v. Chicago, M., St. P. P.R. Co. , 107 Mont. 394 ( 1938 )

I dissent. I think my associates are in error in holding, as they do, that plaintiff is precluded from recovery, as a matter of law, by his contributory negligence. In my opinion, that question, under the evidence, was for the jury.

It is elementary that in determining whether a case should be taken from the jury, the evidence must be viewed in the light most favorable to plaintiff, and if, when so viewed, there is room for different conclusions by reasonable men, then the case should go to the jury. The rule was stated by this court inJarvella v. Northern P. Ry. Co., 101 Mont. 102,53 P.2d 446, as follows: "In the case of Mellon v. Kelly, 99 Mont. 10,41 P.2d 49, 52, we said: `This court has often announced the rule that upon motion for nonsuit or directed verdict the evidence must be viewed from the standpoint most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove. (Nangle v. Northern P. Ry. Co.,96 Mont. 512, 32 P.2d 11.) No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence. (Id.)'"

The test in determining whether plaintiff is guilty of contributory negligence is, Did he, under all the facts and circumstances, exercise reasonable care for his own safety? All the surrounding circumstances must be taken into consideration. Here it was shown that defendant had established a warning signal at the crossing in question by means of gates on which a red light was hung, and this was known to plaintiff. This alone shows that the railway company recognized the crossing to be extraordinarily dangerous, contrary to the holding of the majority. (Jarvella Case, supra.) The gates were not in working order at the time of the collision, and no substitute therefor was established by defendant to warn the traveling public. The gates being open, there was an invitation to cross and an assurance that the track could be crossed in safety. (Elliott on Railroads, 2d ed., par. 1157; Pennsylvania Co. v. Stegemeier,118 Ind. 305, 20 N.E. 843, 10 Am. St. Rep. 136.) The gates being "open, they proclaim safety to the passing public; closed, they proclaim danger." (Baltimore etc. R. Co. v. Landrigan,191 U.S. 461, 24 Sup. Ct. 137, 141, 48 L. Ed. 262.)

As was said in Palmer v. New York Cent. etc. R. Co.,112 N.Y. 234, 19 N.E. 678, 680: "The duty of the company was imperative, and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous, — that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe. Nothing less could be implied, and no other conclusion could be drawn from that circumstance. * * * The open gate was an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass. The way then was open to the intestate, and, as the highway was straight, that fact was apparent to him, not only when he reached the track, but for a long distance off. He had a right to rely to a certain extent upon that representation. (Stapley v. Railway, way, L.R. 1 Exch. 21; Glushing v. Sharp, 96 N.Y. 676.) It is difficult, therefore, to see how his death can be attributed to any other cause than the negligent acts of the defendant; but if there is room for a different inference, there is not enough of it to make the question one of law. He could not rush heedlessly on to danger, and throw the result upon the defendant; but the degree of care required of a traveler is increased or diminished by the greater or less probability, suggested by the circumstances about him, that without it an injury will happen. When, therefore, he moves on upon the track under an assurance of safety from those owning it, and from their servants, whose especial duty it was to keep their attention fixed upon it, and who had within their power the means of avoiding the infliction of injury, and whose business it was to use them so as to prevent danger, it is for the jury to say whether the traveler exercised that ordinary care and prudence which, under the circumstances, it would be natural to expect."

This court in Stewart v. Standard Pub. Co., 102 Mont. 43,55 P.2d 694, applied this principle by saying: "In 45 C.J. 650, it is said: `The governing rule is that, where a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of negligent failure so to perform it.' This rule therein announced is recognized by many text-writers and in innumerable decisions of the courts."

I concede that ordinarily a train on a crossing in itself constitutes a warning of danger. But here plaintiff testified that he could not see the train because a street light about 40 feet north of the train and hanging in the center of the street, formed a curtain which prevented him seeing the train until the car had passed under the light and until it was too late to stop the car before striking the train, and that he relied on the fact that the gates were up.

The question of contributory negligence under facts very similar to those here was held for the jury in the JarvellaCase, supra, wherein this court said: "Many cases may be found in the books holding, under varying circumstances, that plaintiffs colliding with a slowly moving train of cars or a train of cars which had been stopped on a crossing are guilty of contributory negligence. On the other hand, other cases under facts somewhat similar to those in question hold that the question of contributory negligence is one of fact for the jury. It was so held where the question was raised on the pleadings in the cases of Central of Georgia Ry. Co. v. Heard,36 Ga. App. 332, 136 S.E. 533, and Elliott v. Missouri P. Ry. Co.,227 Mo. App. 225, 52 S.W.2d 448; and a like result was declared where the question arose, as here, on a motion for nonsuit or directed verdict, in the cases of Nashville, C. St. L. Ry.Co. v. Nall, 236 Ky. 554, 33 S.W.2d 640, Spiers v.Atlantic Coast Line R. Co., 174 S.C. 508, 178 S.E. 136, andShort v. Pennsylvania R. Co., 46 Ohio App. 77, 187 N.E. 737. (See, also, Blashfield's Cyc. Automobile Law, Perm. Ed., vol. 3, p. 210.) We conclude that the question of contributory negligence was properly submitted to the jury."

I concede that there are some slight distinguishing features between this case and the Jarvella Case. The most important difference between the two, however, is that this case presents a stronger one for the jury than the Jarvella Case. In that case plaintiff had not been deceived by crossing gates, as here. In that case there never had been crossing gates at the crossing in question; also, in that case there was nothing to obstruct plaintiff's vision ahead. There were buildings on the side of the highway accentuating the darkness, but they did not obstruct travelers from seeing a train on the track ahead. Here there was evidence that plaintiff could not see ahead because of the reflection of the street light. I think there is less reason in this case than in the Jarvella Case for holding plaintiff guilty of contributory negligence, as a matter of law. There are no physical facts in this case which conclusively refute the evidence offered by plaintiff.

This court, in my opinion, on the evidence in the record before us is not warranted in saying that all reasonable men can arrive at but one conclusion. The jurors and the trial judge who had the advantage, denied us, of seeing the witnesses and hearing them testify, were satisfied with plaintiff's explanation as to why he could not see the train. I think that explanation was more reasonable than the one held sufficient in the Jarvella Case.

The evidence pointed out in the majority opinion tending to show that the bell was rung, the whistle blown and a lantern displayed by the watchman, all related to the time when the train approached the crossing and not to the time when plaintiff approached it, and, therefore, has nothing to do with the question of plaintiff's contributory negligence. The flagman was some distance from the crossing when plaintiff approached it.

I disagree also with the majority opinion in so far as it overrules the case of Walters v. Chicago, Mil. Puget SoundRy. Co., 47 Mont. 501, 133 P. 357, 46 L.R.A. (n.s.) 702. The majority say: "It must be kept in mind that railway trains have the right of way over their own railway lines and may run their trains at will, being responsible for due care to protect the lives and property of others." I presume the majority intended to apply that statement to the facts of this case. Since we are dealing with a public crossing, I assume they intend that statement to apply to such a place. In the Walters Case this court, in disapproving of two federal cases [New York Cent. H.R.R. Co. v. Maidment, 168 Fed. 21, 21 L.R.A. (n.s.) 794;Brommer v. Pennsylvania R. Co., 179 Fed. 577, 29 L.R.A. (n.s.) 924] had this to say: "Both of the decisions just cited emanated from the Circuit Court of Appeals for the Third District speaking through Judge Buffington, and they proceed upon the mistaken ideas that a railroad has some sort of a paramount right to the use of a public highway crossing, and that whether a citizen using the highway on approaching such crossing must stop, look and listen, depends upon the motive power he is using and its amenability to control; whereas the true rule, as we understand it, is that the citizen has an equal right with the railway company to use the crossing." I believe the Walters Case states the correct rule.

It is my opinion that the case was properly submitted to the jury and that the judgment should be affirmed.

Rehearing denied January 18, 1939.