Smith v. Oregon Short Line Railroad

MOEGAN, C. J.

At about half-past 5 o ’clock on the evening of December 15, 1914, as respondent, Emer "W. Smith, was attempting to cross appellant’s railroad track at a point where it intersects Ninth Avenue in the city of Caldwell, the horse she was driving and the buggy in which she was riding were struck By one of its locomotives. As a result of the collision she was seriously injured and the horse, buggy and harness were destroyed. An action was commenced against appellant -by Mrs. Smith and her husband to recover damages for her injuries, and a separate action was commenced by the husband to recover damages sustained by him because of injuries to his wife and on account of the déstruetion of the above mentioned1 personal property. The cases were consolidated and tried together in the district court and will be disposed of here in one opinion.

Appellant contends that the evidence is insufficient to justify the verdicts and insists that its negligence was not the proximate cause of the collision, but that it was proximately caused and directly contributed to by the negligence of Mrs. Smith in going upon the track in front of the train without stopping, looking or listening.

The locomotive which struck the horse, and buggy was attached to a train referred to in the record as “the fast mail, ’ ’ and the evidence tends to show that at the time of and immediately prior to the collision C. S., sec. 4820, was not complied with. It provides: “A bell of at least 20 pounds weight must be placed on each locomotive engine, and be rung at a distance of at least 80 rods from the place where the railroad crosses any street, road or highway, and be kept ringing until it has crossed such street, road, or highway.....”

The failure to conform to that statute has been held repeatedly to be negligence per se. (Wheeler v. Oregon R. R. etc. Co., 16 Ida. 375, 102 Pac. 347; Fleenor v. Oregon Short Line R. R. Co., 16 Ida. 781, 102 Pac. 897; Graves v. Northern Pacific Ry. Co., 30 Ida. 542, 166 Pac. 571.)

There is evidence sufficient to establish that just prior to the accident Mrs. Smith was driving rapidly toward the crossing; that from the time she came within 75 feet of the railroad track until she reached it there was no obstacle to prevent her seeing the approaching train; that it was a damp, foggy evening and that the headlight on the locomotive was not lighted; that no warning of the approach of the train was given, after she came within hearing distance of it, either by blowing a whistle, ringing a bell, sounding a crossing gong, which was located at that point, or by any other means. Mrs. Smith testified that, as she approached, she looked up and down the track and listened, but neither saw nor heard the train until it was almost upon her.

In Fleenor v. Oregon Short Line R. R. Co., supra, the court said: ‘ ‘ The railroad company has a right to assume that the traveling public will look and listen for passing trains, and that having looked and listened, they will discover the oncoming train and clear the track. The traveler has an equal and like right to assume that the railroad company will give the required signals of the train’s approach.....Pie has a right to assume that the train will observe the usual regulations and precautions at street crossings. If the operatives fail to give or display those signals by which the traveling public are to see and hear approaching trains, the exercise of the usual precautions of looking and listening are not likely to serve the protective and preventive ends for which they are intended. The company must make the approach of its trains at such places known by appropriate means so that by looking and listening, the traveler crossing its track may be able to discover its approach.”

It was not only Mrs. Smith’s duty, as she approached the crossing, to look for a train, but to listen for the warning signals of its approach which it was appellant’s duty to give. The evidence shows she did both. It is probable that, not hearing a whistle, bell or gong, and being lulled into a. sense of security by appellant’s failure to do its duty in that behalf, she did not look as carefully as a prudent person would have done who had no sense of hearing, or whose duty it was to depend upon the sense of sight alone. The law which required her to listen will protect her in acting, in part at least, upon the information thus obtained. ,

Contributory negligence is generally a question of fact for the jury and only becomes one of law when the evidence is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances. (Donovan v. Boise City, 31 Ida. 324, 171 Pac. 670.)

¥e cannot say, as a matter of law, that the evidence establishes contributory negligence. The judgments and order denying a new trial are affirmed. Costs are awarded to respondents.

Rice and Budge, JJ., concur.