Lawrence v. Denver & R. G. R. Co. , 52 Utah 414 ( 1918 )

McCARTY, J.

(after stating the facts as above.)

The facts of this case, briefly stated, are as follows: On March 26,1916, one Orson Bird, who was in the employ of Taylor Bros., of Provo, Utah, called at the home of plaintiff in Spanish Fork, Utah, and endeavored to sell plaintiff and his wife a piano. Respecting what was said and done on that occasion by and between the parties, Mrs. Lawrence, plaintiff’s wife, testified in part as follows:

“He (Orson Bird) had come over to our place and wanted us to go over to Provo to sell us a piano. I told him I didn’t want to buy a piano. * * * He said I would enjoy the ride and that it was no harm in riding over to look at a piano. * * * He did not particularly urge me to go; be suggested we ride over in the ear. It was between 1 and 2, after lunch time. # * * When we got through with our mission at Provo and were ready to return, I believe the curtains were down. * * * On our way back we stopped at the Springville post office about twenty minutes. ’ ’

Plaintiff testified, in part, as follows:

“We came to Provo to look at a piano which Bird was soliciting to sell, and after we examined the piano we came home. ’ ’

Plaintiff and Bird were in the front seat. Mrs. Lawrence, Mrs. Groesbeck, plaintiff’s daughter, and her little daughter, were in the back or rear seat of the automobile. Bird drove the automobile which belonged to his employers, Taylor Bros. The Orem Electric Interurban Railroad track, hereinafter referred to as the Orem track, is located for a considerable distance on and along the street in question, which is sometimes called “State street,” as it is the main or principal thoroughfare north and south through Springville City. The Denver & Rio Grande Railroad track crosses this street near the southern part of the inhabited portion of the city. From the Spring-ville post office the parties in the automobile proceeded along this street in a southerly direction parallel with and on the west side of the Orem track, towards Spanish Fork. On this point plaintiff testified as follows:

“As we approached the crossing at Springville we were on the right-hand side of the road- — that is, on the west of the Orem track — until we got up to within 100 or 150 feet of the crossing. It was necessary to cross the Orem road to come to the crossing of the Rio Grande. He [Bird] crossed over, slowing up as he crossed. He went right on, and as we got within, to my best knowledge, from twenty-five to thirty-five feet from the track, I saw the train coming. ’ ’

Bird, a witness for plaintiff, testified in part:

“I was driving on the west side of the Interurban trades, and crossed over to the east about 150 or 200 feet from the Rio Grande tracks. * # # I slacked up crossing this track, and, knowing the other was right ahead of me, I drove slow from there on. * * * Just prior to approaching the D. & R. G. crossing I would judge I was driving from six to eight miles an hour. * * * I was about twenty or twenty-five feet from the Rio Grande crossing when I first saw the train. * * * It was about 125 to 135 feet east of the point where I was crossing. * * * As quick as I saw the train I took my foot from the gas feed * * * and applied my foot to the brákes and grabbed the emergency and stopped my car. The car ran about twelve to fifteen feet before stopping. * # * The step on the tender of the engine caught the end of the radiator and lifted the car and turned it right around with the engine facing north.”

The evidence shows that there is an electric bell at the crossing, and that about a quarter of a mile to the east thereof there is an oscillator; that as a train approaches the oscillator from the east the vibration of the rail opens the oscillator and in doing so opens the circuit and starts the bell ringing; that on the occasion in question the bell was so arranged that when the circuit opened it would ring one minute and sixteen seconds. The' evidence further shows that there is a whistling post approximately a quarter of a mile from the crossing. Notice or warning of trains approaching the crossing from the east is supposed to be given by sounding the whistle at the whistling post.

There is substantial evidence to support the finding of the jury that defendant was negligent in running its train at a high and excessive rate of speed, in violation of an ordinance of Springville City then in force.

The important and decisive question therefore is, was 'plaintiff, under the facts and circumstances disclosed by the evidence, considered in the light most favorable to him, guilty of negligence as a matter of law 1 In other words, did plaintiff do, or omit to do, anything on that occasion that, under the law, constituted negligence on his part ?

It is vigorously contended on behalf of appellant that the evidence without conflict shows that on the occasion in question the usual and customary warning and signals, the blowing of the whistle, ringing of the engine bell, and the sounding of the automatic electric bell, were timely given, and that the only inference permissible from the evidence is that, if plaintiff had exercised ordinary care and vigilance in looking and listening as the automobile in which he was riding approached the railroad crossing, he would have seen the approaching train in time to have avoided the collision. On the other hand, counsel for respondent contend with much earnestness that there is a substantial conflict in the evidence as to whether the warning and signals of the approaching train were in fact given.

C. F. Shermer, the locomotive engineer on the train in question, testified on this point in part as follows:

‘ ‘ The first whistle I blew was for the curve, one long and one short, about three quarters of a mile from the crossing. Then when I was right on the curve I whistled for the Springville Station. * # * That was pretty close to half a mile from the crossing. The next time I whistled was for the crossing a quarter of a mile away, two long and two short, just above the crossing. * # * After giving the crossing whistle I answered the semaphore. * * * There were four whistles that day. ’ ’

This witness further testified that the engine bell was rung continuously from the time the train was within one-half mile of the crossing until after the automobile was hit.

Defendant called twenty-two other witnesses, each of whom testified positively that one or more of the warnings or signals mentioned were given as the train approached the crossing'. Some of these witnesses testified that they heard all three signals given before the train arrived at the crossing; others testified that they heard two of the signals, while others testified that they heard but one. Some of the witnesses testified that when their attention was directed to the approaching train by the signals referred to they saw the smoke issuing from the smokestack of the engine before the train came into view. One witness said: “When I first heard the automatic bell I could see a stream of smoke from the engine. ’ ’ All of the twenty-two witnesses last referred to, with the exception of two or three, testified that they heard the whistle before the train could be seen from the vicinity of the crossing. None of them testified that any one or more of the signals were not given. Those who testified to hearing but one or two only, frankly admitted that all three warnings may have been given.

The evidence shows that prior to and at the time of the accident.the wind-shield of the automobile in which plaintiff was riding was up and the curtains down. Plaintiff testified:

‘ ‘ The curtains were down when we left Spanish Fork on our way to Provo. * * * I knew we would have to cross the Eio Grande track to go back to Spanish Fork. I don’t know why I did not suggest to Bird that he put the curtains up so we could see trains better. * * * As we approached the Rio Grande tracks I looked straight ahead and also up and down the track. * * * I heard no whistle — don’t pretend to swear that it was not sounded; it might have been. I didn’t hear it.”

And again:

“I know that with the side curtains down my sense of hearing would be impeded. I wouldn’t be able to hear as well with them down as up. ”

Referring to the automatic bell plaintiff testified:

“I didn[t hear it ringing. It might have rung without my knowing it. I don’t pretend to say that it was not rung. With the curtains down and the wind-shield up it might have been ringing without my hearing it. Don’t think that was the case. I heard the automatic bell ringing just- after I got out of the car; heard it ringing when the train backed up. I know that with the curtains down my sense of hearing would be impeded. ’ ’

Bird testified in part as follows:

“As I approached the crossing I did not hear any engine whistle or bell, nor the street gong. * * * The wind-shield was up. With the curtains down and wind-shield up they would protect us more or less from the weather, and I could hear just as well. * * * From my best judgment I swear the whistle was not sounded.”

The witness further testified:

“It [referring to the automatic belli might have been ringing and I might not pay any attention to it because I didn’t depend on that. I would not swear whether it was ringing or not. I didn’t bear it. I have no recollection of bearing it until after the train passed there.”

■ Mrs. Groesbeck, plaintiff’s daughter, who, as stated, was in the automobile, testified that she “heard no whistle or bell.”

Plaintiff also called two persons who were on the train that collided ivith the automobile as witnesses, and each of them testified that he did not hear any of the warnings or signals given as the train approached the crossing. But neither of them ventured the statement that they were not given. And neither plaintiff nor Bird testified that the signals were not given.

The most that can be claimed for the testimony of plaintiff and his witnesses on this point is that it shows that they did not hear the warning and signals, if any were given.

Plaintiff in giving his testimony said in part:

“As we approached the crossing Bird was looking ahead, sitting down manipulating the machinery. * * * I was looking at him to see what he was looking at. * * * I looked to see if he was paying any attention for trains. This was when we crossed the Orem track. He was looking at his steering wheel. He was looking straight ahead. * * * I didn’t see him looking out of the side curtains either up or down the track. * * * I saw the train before he saw it. I said to Bird, ‘There is a train coming. ’ If I had not called his attention to the train, I know of no reason why the automobile would not have gone right up on the track in front of the engine. He gave no indication of seeing the train until I called his attention. # * * When we struck the car (automobile) was about stopped.”

And again:

“I had no occasion to tell him anything pertaining to its running. ’ ’

Plaintiff also testified that a box elder tree, the trunk of which was from two and one-half to three feet in diameter, and several telegraph poles that stood near the crossing, tended to, and did, obstruct his view of the train at a point about thirty or thirty-five feet from the railroad track. The record shows that there was no foliage on the tree.

The only inference permissible from the evidence is that the warnings and signals mentioned were given. The alleged failure of plaintiff and Bird to hear one or more of them, their failure to observe the smoke issuing from the engine, or to hear the rumble and noise of the fast-moving train 1, 2, 3 in time to have avoided the accident, cannot, in the face of the undisputed evidence, be accounted for or explained on any theory other than that of indifference, inattention, and lack of ordinary care and caution on their part. Each of them testified that he was familiar with the crossing, having passed over it many times. Furthermore, it is a well-recognized rule that a steam railroad track in actual use is a constant warning of danger, and its presence is sufficient, as a matter of law, to put a reasonably careful person approaching it on notice of such danger, and it is the duty of such person to look and listen before crossing it. This doctrine is so well recognized and universally adhered to that it would be a work of supererogation to cite authorities illustrating and supporting it.

It is contended on behalf of respondent that there is substantial evidence that he did look and listen for approaching trains as the automobile neared the crossing. A sufficient answer to such contention is that the undisputed facts show that if he looked and listened he ought to have heard the warnings and signals mentioned, and that if he had exercised reasonable care he would have heard them, and probably would have seen the smoke from the locomotive, and heard the noise created by the rapidly moving train in time to have avoided the accident.

Counsel for appellant in their brief clearly, succinctly, and, as we think, correctly, state the general rule as follows:

“A person before attempting to cross a railroad track, and when an approaching train is in full view, is chargeable with seeing what he could have seen if he had looked, 4 and with hearing what he would have heard if he had listened. In other words, where he apparently looks and listens, but does not see or hear the approaching train, it will be presumed that he did not look or listen at all, or, if he did, that he did not heed what he saw or heard.”

The following are a few of the many cases cited by counsel in support of this contention: Glascock v. Central Pac. R. Co., 73 Cal. 137, 14 Pac. 518; D.& R. G. Co. v. Coffehr, 30 Colo. 27, 69 Pac. 582; Woolf v. R. R. Co., 79 Pac. 997; Herbert v. R. R., 121 Cal. 227, 53 Pac. 651; Bilton v. R. R. Co., 148 Cal. 443, 83 Pac. 441; Southern Ry. Co. v. Davis, 34 Ind. App. 377, 72 N. E. 1053; Indiana B. & W. Ry. Co. v. Hammock, 113 Ind. 1, 14 N. E. 737; Miller v. Truesdale, 56 Minn. 274, 57 N. W. 661; Lane v. Mo. Pac. Ry. Co., 132 Mo. 4, 33 S. W. 645, 1128; Hook v. Mo. Pac. Ry. Co., 162 Mo. 569, 63 S. W. 360; Burke v. R. R. Co., 73 Hun. 32, 25 N. Y. Supp. 1009; Dolfini v. Erie R. R. Co., 178 N. Y. 1, 70 N. E. 68; Myers v. B. & O. R. R., 150 Pa. 386, 24 Atl. 747; Haetsch v. C. & N. W. Co., 87 Wis. 304, 58 N. W. 393; Rollins v. Chicago, M. & St. P. Ry. Co., 139 Fed. 639, 71 C. C. A. 615; Westerkamp v. Chicago, B. & Q. Ry., 41 Colo. 290. 92 Pac. 687.

We think the facts of the case bring it within the rule announced in the case of Wilkinson v. Railroad, 35 Utah 110, 99 Pac. 466; Bates v. Railroad, 38 Utah, 568, 114 Pac. 527; Shortino v. Salt Lake & Utah R. Co., 52 Utah, 476, 174 Pac. 860 (recently decided by this court, but not yet officially reported). We invite attention to these cases and the authorities therein cited. The facts of the case last referred to are, in a general way, similar to the facts in the ease at bar. We are, therefore, of the opinion that defendant’s motion for a directed verdict in its favor should have been granted, and that the court erred in denying it.

The court instructed the jury that if they should find from a preponderance of the evidence that the defendant was negligent in the particulars alleged in the complaint, etc., and that—

“If you further find that the plaintiff was riding in 5 the automobile at the time of the accident at the invitation of Mr. Bird, and that the plaintiff had no control over the driving of the automobile, and that no relation of master and servant or principal or agent existed between the plaintiff and Mr. Bird, then I charge you that the plaintiff is entitled to a verdict against the defendant in this case, even though you find it to be a fact that Mr. Bird was negligent in the driving and operation of the automobile at the time of the accident, unless you further find from a preponderance of the evidence in this case that the plaintiff was guilty of contributory negligence, as explained in these instructions, which proximately contributed to the cause of the injury.” (Italics ours.)

Counsel for defendant excepted to that part of the instruction which we have italicized and has assigned the giving of it as error.

The evidence herein set forth of plaintiff and his wife shows conclusively that plaintiff, on the occasion in question, was neither a guest nor an invitee of Bird, the driver of the automobile, as those terms are usually understood and 6 applied in eases where the question of imputed negligence is involved. Bird and Mr. and Mrs. Lawrence, as shown by the undisputed evidence, made the trip in question from Spanish Fork to Provo and return in furtherance of a common object or enterprise, in which they were in a business sense equally interested. In other words, the trip was a business matter and in no sense a social affair. The case, therefore, falls within the rule announced in the case of Derrick v. Salt Lake & O. Ry. Co. (recently decided by this court), 50 Utah, 573, 168 Pac. 335. The negligence of Bird, if he were negligent in the management of the automobile just prior to and at the time of the accident, was imputable to plaintiff. And there is substantial evidence in the record to support a finding by the jury that Bird was negligent. The giving of the italicized part of the instruction was error.

Assuming for the sake of argument, but not conceding, that plaintiff was merely the guest of Bird, and was in no sense responsible for the manner in which Bird operated and managed the automobile while making the trip in question, it nevertheless was incumbent upon him to exercise ordinary care and prudence by making diligent use of his senses of sight and hearing, by looking and listening for trains as the 7 automobile approached the crossing, and to heed the warnings and signals of the approach of the train, and to suggest to Bird that they stop until the danger was over, and to protest if that was not done. R. R. Co. v. Boyts, 16 Ind. App. 640, 45 N. E. 812; Griffith v. R. R. (C. C.) 44 Fed. 574; Aurelius v. R. R. Co., 19 Ind. App. 584, 49 N. E. 857; Read v. R. R., 123 App. Div. 228, 107 N. Y. Supp. 1068; Willfong v. R. R., 116 Iowa, 548, 90 N. W. 358; Davis v. R. R., 159 Fed. 10; Igle v. R. R., 5 Boyce (Del.) 376, 93 Atl. 666.

As we have stated, the only conclusion permissible from the evidence on this point is that plaintiff was guilty of contributory negligence in that regard.

For the reasons stated, the case is reversed, with directions to the lower court to grant a new trial; appellant to recover costs.

FRICK, C. J., and CORFMAN, THURMAN, and GIDEON, JJ., concur.