Opinion
No. 70-479
Decided April 11, 1972. Rehearing denied May 2, 1972. Certiorari granted June 19, 1972.
Personal injury action by passenger of car that was struck by train at railroad crossing. From directed verdict for defendant at close of plaintiff's evidence, plaintiff appealed.
Affirmed
1. EVIDENCE — Photographs — Admitted — No Objection — Cannot Argue — Present — Distorted View. Since photographs of railroad crossing where accident occurred were introduced into evidence without any qualification or reservation, and since no objection was made to the admission of the photos, their accuracy was, in fact, conceded, and it cannot be argued that they present a distorted view of the scene they depict.
2. RAILROADS — Lack of Warning Sign — Plaintiff's Side of Tracks — Not Violation — Required Standard of Conduct. Since plaintiff and driver had just traversed road that crossed railroad tracks shortly before the accident and had traveled it on several prior occasions and knew of the location of the tracks, there was no showing that the failure to have a warning sign on the side of the tracks from which plaintiff was approaching constituted violation of any standard of conduct required of railroad.
3. EVIDENCE — Testimony — Witnesses — Not Listening — Train Warning — No Probative Value — No Conflict Created — Engineer's and Brakeman's Testimony. Where engineer and brakeman testified that warning was given as train approached crossing, the testimony of two persons some distance from the intersection that they did not hear the whistle and bell, but also that they were not listening for it, was testimony which had no probative value; and, as such, it did not create a conflict in the evidence as to whether a warning had been given.
4. AUTOMOBILES — Driver — Failure to See Train — Clearly Visible — Contributorily Negligent — Imputable — Passenger-Owner. Where driver of car was familiar with railroad crossing and with the road on which he was driving and where train was clearly visible to him for some distance before he reached the crossing, he was guilty of contributory negligence as a matter of law in failing to see the train and failing to be able to stop, and this negligence was imputable to plaintiff, the owner of the car riding in it as a passenger.
5. Plaintiff — Passenger in Own Car — Failure — See Train — Warn Driver — Contributory Negligence — Matter of Law. Plaintiff, riding in his own car as a passenger, was guilty of contributory negligence as matter of law in failing to see train approaching crossing and failing to warn driver of the impending danger it represented.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Judge.
Gerash Kaiser, Davies Dikeou, for plaintiff-appellant.
Kenneth D. Barrows, for defendant-appellee.
This appeal arises from an automobile-train collision occurring at a railroad crossing near Minturn, Colorado. Plaintiff's complaint alleged that the accident was caused by the negligence of the railroad in failing to properly maintain the crossing or in failing to give such warning as would be reasonable under the conditions and circumstances existing at that particular crossing. These allegations were denied by the railroad and answered with the affirmative defense of contributory negligence. Trial was to a jury.
Following the presentation of plaintiff's evidence, the trial court directed a verdict for defendant railroad against plaintiff, solely on the ground that plaintiff had failed to make out a prima facie case of negligence on the part of the railroad. The issue of contributory negligence was not ruled upon by the court.
Plaintiff appeals, alleging that by resolving all conflicts and doubts in his favor the evidence in the record establishes that plaintiff had established a prima facie case of negligence against defendant. We do not agree. In addition we are of the opinion that plaintiff was guilty of contributory negligence as a matter of law.
The evidence presented by plaintiff indicates that on the date of the accident, at about two o'clock in the afternoon, plaintiff was riding in a car owned by him, but driven by one Don Chacon. The automobile approached the crossing, located at the bottom of a downgrade, at a speed of approximately 15 miles per hour or less. Testimony of a state patrolman indicated that the brakes of the vehicle were applied approximately 19 feet from the track of defendant and that the vehicle became stuck with its front tires resting against the track. In that position, the vehicle was struck by defendant's train, which was traveling at approximately 30 miles per hour. The collision caused the death of the driver, Chacon, and substantial injuries to plaintiff.
At the time of the accident the road was snow-packed and icy. The area surrounding the crossing was covered with snow, and there were snowbanks on both sides of the road. There is a conflict in the testimony as to the height of these snowbanks. At this crossing, there was one standard crossbuck railroad crossing warning sign that was located 30 feet from the track, on the opposite side of the rails from which plaintiff approached. There was evidence that the road, a county road outside of Minturn, received more than the normal use for such roads in that it led to a public dump for the town of Minturn.
The engineer and brakeman testified that the train's whistle was continuously blowing 800 to 1000 feet from the crossing until the collision. A witness, who was in her home about three blocks from the crossing, testified that she did not remember hearing the train's whistle blow. Plaintiff was rendered unconscious in the accident and has no memory for events that occurred immediately prior to the accident.
Further evidence indicates that plaintiff's vehicle was first noticed by defendant railroad's brakeman when the automobile was approximately 300 feet from the track, and that he continued to watch the vehicle until the collision. When he noticed the right front wheel of the vehicle slide, he realized the vehicle was in a position of peril and warned the engineer and both acted to set the emergency brakes of the train.
I.
In approaching the problems presented by this appeal, we must first determine whether there was sufficient evidence to present a jury question on the issue of the negligence of the railroad. Motions for directed verdict present a question of law and in deciding the motion the court must consider the evidence in the light most favorable to the party against whom the motion is directed. Every factual dispute supported by credible evidence must be resolved in his favor, and the strongest inferences reasonably deducible from the most favorable evidence must be indulged in his favor. Lee v. Missouri Pacific R.R. Co., 152 Colo. 179, 381 P.2d 35; Elliott v. Hill, 148 Colo. 553, 366 P.2d 663.
The main contention of plaintiff is that the snow was piled high along the railroad right-of-way so that an on-coming motorist could not see an approaching train.
[1] A number of pictures taken shortly after the accident were introduced into evidence showing the immediate scene of the accident and also showing the scene of the accident as it appeared at 25-foot intervals from the railroad crossing back along the route from which plaintiff approached the crossing. The pictures clearly show that the crossbuck was visible. The pictures also show that on approaching the crossing from as far back as the pictures were taken, 150 feet, a small house located approximately 180 feet down the track in the direction from which the train came was clearly visible. Likewise, a train would also have been clearly visible as is self-evident from the photos. There was testimony by the patrolman that the snow was piled some four to five feet high along the road at the intersection with the tracks. One witness testified that the snow was piled so high that one could not see the train. A picture was introduced showing an automobile next to this bank. Even if the train could not be seen from this position, it is self-evident from the other pictures that it could be seen by one approaching the track from 50 feet away and from there on back along plaintiff's route of approach. These photos were introduced into evidence without any qualification or reservations. Since no objection was made to the admission of the photos, their accuracy was in fact conceded, and it cannot be argued that they present a distorted view of the scene the depict. In Southern Ry. Co. v. Terry, 40 Ala. App. 186, 109 So.2d 913, rev'd on other grounds, 268 Ala. 510, 109 So.2d 919, the court held that where a witness testified in direct contradiction to the scene depicted in a photo, this testimony would create no conflict.
[2] Plaintiff argues that the railroad was negligent in not having a railroad crossbar warning sign for plaintiff to observe as they approached the track. They had just traversed this road and had traveled it on several prior occasions and knew of the location of the tracks. There was no showing that the failure to have a warning sign on the side of the tracks from which plaintiff was approaching was a violation of any standard of conduct required to be observed by the railroad, nor was there any evidence that the absence of the second warning sign was a contributing factor to the accident.
[3] Plaintiff contends that there was a conflict in the evidence as to whether defendant had given a warning as the train approached the intersection. The engineer and brakeman testified that warnings were given. Two persons some distance from the intersection testified that they did not hear the train's whistle and bell, but they also testified that they were not listening for it. Their testimony has no probative value. Plaintiff has no recollection of events immediately preceding the accident. The other arguments as to the negligence of defendant raised by plaintiff have no merit.
II.
It is the railroad's contention that even if the evidence of negligence were sufficient to present a jury question, plaintiff is barred, as a matter of law, by the contributory negligence of the driver, which negligence is imputable to plaintiff under the facts in this case. We agree.
The road which Chacon was on, leading from the dump to the railroad, was downgrade and prior to the crossing was above and parallel to the railroad track. The train was coming in the opposite direction from Chacon and plaintiff. The brakeman testified that he had the car in view for at least 300 feet prior to the train reaching the crossing. The train had four diesel locomotives in front, each of which were 16 feet in height, colored black with yellow stripes. The seat of the brakeman was 12 feet above the tracks. The train was clearly visible to Chacon and plaintiff from the time they were within 150 feet of the track, except perhaps the last 25 to 50 feet of their approach.
The driver of the car was killed in the accident. However, he was driving plaintiff's car and under these circumstances any negligence of the driver would be imputed to the owner riding in his own car with another person driving. Moore v. Skiles, 130 Colo. 191, 274 P.2d 311.
Plaintiff was rendered unconscious in the collision and had no recollection of events immediately preceding the accident. Chacon was killed and there is no evidence as to whether he saw the train, other than the skid marks of 19 feet.
[4] Chacon was familiar with the crossing and the road on which he was driving. The train was clearly visible to him for some distance before he reached the crossing. He should have seen the train and been able to stop. He was guilty of contributory negligence as a matter of law. Denver Rio Grande R.R. Co., v. Lipscomb, 164 Colo. 506, 437 P.2d 554; Balloga v. Wyman, 163 Colo. 558, 431 P.2d 866; Lee v. Missouri Pacific R.R. Co., 152 Colo. 179, 381 P.2d 35, and this negligence was imputed to plaintiff. Moore v. Skiles, supra.
[5] Besides the imputed contributory negligence of Chacon to plaintiff, plaintiff himself was guilty of contributory negligence as a matter of law.
In affirming a directed verdict for the railroad in a suit by hitchhiker in a truck, the court in Kutchma v. Atchison, T. S.F. Ry. Co., 23 F.2d 183, said:
"There are many other cases in this circuit applying the rule that a traveler approaching these known places of danger must look and listen at places and at times where and when his senses will give notice of approaching trains; and if he fails to do so and is injured on the crossing by a train whose approach he might have discovered by a reasonable use of his senses, such failure is negligence on his part contributing to the infliction of the injuries which he receives and for that reason his right to recovery is barred. Parramore v. Denver R.G.W.R. Co. (C.C.A.) 5 F.2d 912; Hickey v. Mo. Pac. R.R. Co. (C.C.A.) 8 F.2d 128; Bradley v. Mo. Pac. R.R. Co. (C.C.A.) 288 F. 484; A.T. S.F. Ry. Co. v. McNulty (C.C.A.) 285 F. 97; Noble v. C.M. St.P. Rwy. Co. (C.C.A.) 298 F. 381. Other cases upholding the rule are cited in those just named. To listen only when one cannot hear an approaching train because other noises obstruct the sense of hearing, and to look only where the view of the approaching train is obstructed, is as careless and neglectful of duty as to not listen or look at all.
"* * * It is obvious from the testimony and the photographic exhibits of the locality that there were points before they reached the main track at which the approaching train could have been seen in ample time to have prevented the collision. They did not look to the north at those points else they would have seen the train, and if they only looked at points where their vision was obstructed it was their duty to take other means of precaution. They were negligent in no doing so. The judgments are affirmed."
In Willy v. Atchison, Topeka Santa Fe Ry. Co., 115 Colo. 306, 172 P.2d 958, the Colorado Supreme Court, referring to a passenger held:
"Had she looked to the south, she could have seen the approaching train in ample time to have prevented the collision. Evidence that the witness looked to the south and could not and did not see the approaching train when her view was unobstructed, is not worthy of consideration. Irrespective of the doctrine of imputation of negligence, it was plaintiff's duty to exercise ordinary care for her own safety, and, when reasonably necessary, to warn the driver of impending danger."
Other Colorado cases holding passengers contributorily negligent as a matter of law are Union Pacific R.R. Co. v. Snyder, 220 F.2d 388, which quotes the above from the Willy case; Mabray v. Union Pacific R.R. Co., 5 F.Supp. 397; and Colorado Southern R.R. Co. v. Thomas, 33 Colo. 517.
Judgment affirmed.
JUDGE ENOCH concurs; JUDGE PIERCE dissents.