MORGAN, J. —
This is an action for damages by the parents of Bertram Julius Allan who lost his life in a collision between a truck he was driving and a locomotive drawing a southbound train of respondent Oregon Short Line Railroad Company, driven by respondent Rose, at a railroad crossing about two miles south of St. Anthony. At the end of the introduction of proof the trial judge granted defendants’ motion for a directed verdict, which was followed by judgment of dismissal. This appeal is from the judgment, and questions of negligence and contributory negligence, and of the application of the doctrine of last clear chance, are presented.
As a general rule the question of negligence, or contributory negligence, is one for the jury. Where negligence has been established and contributory negligence is relied on, I. C. A., sec. 5-816 applies. It is as follows:
“In all actions hereafter brought for damages for injury to person or property, contributory negligence is a matter of defense, and it is not necessary for the plaintiff to either plead or prove the negative of contributory negligence.”
The question of contributory negligence is for the jury and never one of law unless the facts alleged in the complaint, or proven, are reasonably susceptible of no other interpretation than that the conduct of the injured party caused or 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 like circumstances.
(Adkins v. Zalasky,
59 Ida. 292, 81 Pac. (2d) 1090.)
A motion for nonsuit, or directed verdict, admits the truth of all evidence introduced on behalf of plaintiff and he is entitled to have drawn therefrom all reasonable inferences favorable to him.
(Branson v. Northern Pacific Ry.
Co.,
55 Ida. 220, 41 Pac. (2d) 629.) In
Claris v. Oregon Short Line R. R. Co.,
54 Ida. 568, 573, 33 Pac. (2d) 348, 349, it is said:
“The rule, we think, is that in a motion for nonsuit or directed verdict the evidence must be construed in the light most favorable to plaintiff. It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may be properly ordered or a directed verdict granted. Where the question depends on a state of facts from which different minds may honestly draw different conclusions on that issue the question must be submitted to the jury for determination. Where facts are disputed or inferences therefrom are reasonably disputable, the question is one for the jury.”
With these rules of law in mind, we have carefully examined the evidence. It shows that in the afternoon of March 26, 1934, Vernon Slack, a witness called on behalf of appellants, was traveling northward, in a truck, on the highway adjoining, and parallel to, the railroad. With him in the truck was J. W. Farrimond, a witness called on behalf of respondents. As they approached the intersection of the railroad, which runs in a northerly and southerly direction, and a county road, which runs in an easterly and westerly direction, they saw the truck, in charge of Bertram Julius Allan, in the county road, headed west, pulled up close to the railroad track. Allan got out of the truck on the left side, walked around in front of it to the right side “and looked like he was looking at his tires, and then walked back and looked at the tires on thé side that he got out of; and then he got into the truck, and started up to go across.” The truck passed over the railroad track to the west and just as it got across, the train hit it just behind the hind wheel. Slack testified he did not remember of hearing a whistle but saw three blasts of steam coming from the top of the engine when it was close to the crossing; that he did not remember of hearing the engine bell ring. He further testified that when he saw the truck standing on the east side of the railroad track it was probably 8 feet, more or less, from the rail. He was uncertain as to the distance the train was from the crossing when Allan started across with
the truck. In his testimony, he placed it at from 150 feet to, “maybe a thousand feet, or maybe not that far.”
Farrimond testified he noticed the train leaving St. Anthony when he was probably half a mile down the highway south of the crossing; that while the truck was standing it was 10 or 12 feet from the east rail of the railroad track; that he saw the locomotive at the time the truck started up; that it was probably a couple of hundred or three hundred feet from the crossing; that he heard the whistle when the train was about half a mile up the track and did not hear it again before it got to the crossing; that he thought he would have heard it if it had whistled; that he did not hear the bell ringing before the locomotive got to the crossing, but did he'ar it when it went by the truck; that he thought he was in position to have heard it had it been ringing; that he would not undertake to say the bell was not ringing before it reached the crossing.
The fireman on the locomotive, called as a witness on behalf of respondents, testified the bell was ringing when the train left the station at St. Anthony; that it was an automatic ringer and continued to ring until after the accident; that the engineer started to sound the whistle about the time he passed the whistle board, a quarter of a mile from the crossing ; that the signal consisted of two long and two short blasts, so spaced that the last one was sounded about the time the locomotive reached the crossing. This witness testified he saw the truck on the road when he was about a half or three-quarters of a mile from it; that it was standing 12 or 15 feet from the east rail; that he saw the driver go around from the front and get into the truck; that the truck started ahead when the locomotive was 150 or 200 feet from the crossing and he immediately called to the engineer “to hold it.” He testified:
“A. Well, when I hollered for him to hold her, I heard the air brake go into emergency by the escaping of the air out through the brake valve.
“Q. Where would you say the brakes first set and took hold ?
“A. Well, I judge about 75 or 100 feet from the crossing I felt the engine take hold.
“Q. And how far beyond the crossing was the engine when it came to a stop?
“A.
About two and a half telegraph poles.”
The engineer corroborated the fireman’s testimony with respect to the giving of the crossing signals by sounding the whistle and ringing the bell. He also testified that when the train got within a half or three-quarters of a mile from the crossing he saw the truck standing on the east side of the track somewhere between 10 and 20 feet from the east rail. The engineer was seated on the right hand, or west side, of the cab and as the train approached the crossing the front of the locomotive obscured his view of the truck so that he did not see it start across the track. He testified:
“When I was whistling the third whistle the fireman hollered to me to hold it.
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MORGAN, J. —
This is an action for damages by the parents of Bertram Julius Allan who lost his life in a collision between a truck he was driving and a locomotive drawing a southbound train of respondent Oregon Short Line Railroad Company, driven by respondent Rose, at a railroad crossing about two miles south of St. Anthony. At the end of the introduction of proof the trial judge granted defendants’ motion for a directed verdict, which was followed by judgment of dismissal. This appeal is from the judgment, and questions of negligence and contributory negligence, and of the application of the doctrine of last clear chance, are presented.
As a general rule the question of negligence, or contributory negligence, is one for the jury. Where negligence has been established and contributory negligence is relied on, I. C. A., sec. 5-816 applies. It is as follows:
“In all actions hereafter brought for damages for injury to person or property, contributory negligence is a matter of defense, and it is not necessary for the plaintiff to either plead or prove the negative of contributory negligence.”
The question of contributory negligence is for the jury and never one of law unless the facts alleged in the complaint, or proven, are reasonably susceptible of no other interpretation than that the conduct of the injured party caused or 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 like circumstances.
(Adkins v. Zalasky,
59 Ida. 292, 81 Pac. (2d) 1090.)
A motion for nonsuit, or directed verdict, admits the truth of all evidence introduced on behalf of plaintiff and he is entitled to have drawn therefrom all reasonable inferences favorable to him.
(Branson v. Northern Pacific Ry.
Co.,
55 Ida. 220, 41 Pac. (2d) 629.) In
Claris v. Oregon Short Line R. R. Co.,
54 Ida. 568, 573, 33 Pac. (2d) 348, 349, it is said:
“The rule, we think, is that in a motion for nonsuit or directed verdict the evidence must be construed in the light most favorable to plaintiff. It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may be properly ordered or a directed verdict granted. Where the question depends on a state of facts from which different minds may honestly draw different conclusions on that issue the question must be submitted to the jury for determination. Where facts are disputed or inferences therefrom are reasonably disputable, the question is one for the jury.”
With these rules of law in mind, we have carefully examined the evidence. It shows that in the afternoon of March 26, 1934, Vernon Slack, a witness called on behalf of appellants, was traveling northward, in a truck, on the highway adjoining, and parallel to, the railroad. With him in the truck was J. W. Farrimond, a witness called on behalf of respondents. As they approached the intersection of the railroad, which runs in a northerly and southerly direction, and a county road, which runs in an easterly and westerly direction, they saw the truck, in charge of Bertram Julius Allan, in the county road, headed west, pulled up close to the railroad track. Allan got out of the truck on the left side, walked around in front of it to the right side “and looked like he was looking at his tires, and then walked back and looked at the tires on thé side that he got out of; and then he got into the truck, and started up to go across.” The truck passed over the railroad track to the west and just as it got across, the train hit it just behind the hind wheel. Slack testified he did not remember of hearing a whistle but saw three blasts of steam coming from the top of the engine when it was close to the crossing; that he did not remember of hearing the engine bell ring. He further testified that when he saw the truck standing on the east side of the railroad track it was probably 8 feet, more or less, from the rail. He was uncertain as to the distance the train was from the crossing when Allan started across with
the truck. In his testimony, he placed it at from 150 feet to, “maybe a thousand feet, or maybe not that far.”
Farrimond testified he noticed the train leaving St. Anthony when he was probably half a mile down the highway south of the crossing; that while the truck was standing it was 10 or 12 feet from the east rail of the railroad track; that he saw the locomotive at the time the truck started up; that it was probably a couple of hundred or three hundred feet from the crossing; that he heard the whistle when the train was about half a mile up the track and did not hear it again before it got to the crossing; that he thought he would have heard it if it had whistled; that he did not hear the bell ringing before the locomotive got to the crossing, but did he'ar it when it went by the truck; that he thought he was in position to have heard it had it been ringing; that he would not undertake to say the bell was not ringing before it reached the crossing.
The fireman on the locomotive, called as a witness on behalf of respondents, testified the bell was ringing when the train left the station at St. Anthony; that it was an automatic ringer and continued to ring until after the accident; that the engineer started to sound the whistle about the time he passed the whistle board, a quarter of a mile from the crossing ; that the signal consisted of two long and two short blasts, so spaced that the last one was sounded about the time the locomotive reached the crossing. This witness testified he saw the truck on the road when he was about a half or three-quarters of a mile from it; that it was standing 12 or 15 feet from the east rail; that he saw the driver go around from the front and get into the truck; that the truck started ahead when the locomotive was 150 or 200 feet from the crossing and he immediately called to the engineer “to hold it.” He testified:
“A. Well, when I hollered for him to hold her, I heard the air brake go into emergency by the escaping of the air out through the brake valve.
“Q. Where would you say the brakes first set and took hold ?
“A. Well, I judge about 75 or 100 feet from the crossing I felt the engine take hold.
“Q. And how far beyond the crossing was the engine when it came to a stop?
“A.
About two and a half telegraph poles.”
The engineer corroborated the fireman’s testimony with respect to the giving of the crossing signals by sounding the whistle and ringing the bell. He also testified that when the train got within a half or three-quarters of a mile from the crossing he saw the truck standing on the east side of the track somewhere between 10 and 20 feet from the east rail. The engineer was seated on the right hand, or west side, of the cab and as the train approached the crossing the front of the locomotive obscured his view of the truck so that he did not see it start across the track. He testified:
“When I was whistling the third whistle the fireman hollered to me to hold it. I let loose of the whistle cord, and closed the throttle, and threw her into emergency, and turned on the sand; and then I blew the last whistle just as we were going onto the crossing.....
“Q. Upon the fireman calling to you, and you doing what you said you did, what was the brake response ?
“A. Well, within about 55 feet of the crossing, I could feel the brakes take hold.
“Q. What was the most effective thing that you could do under the circumstances to stop or retard the speed of the train ?
“A. Set the brakes in emergency.
“Q. Was there anything you know of that you might have done, that you didn’t do, to quickly and effectively retard the speed of the train?
“A. No, sir, not anything.”
A section crew, working within hearing distance of the whistle board, corroborated the fireman and the engineer with respect to the giving of the crossing signal.
There is some evidence that weeds were growing along the right of way north of the crossing and on the east side of the track. There is also testimony to the effect that willow brush was piled between the track and the east right-of-way fence a short distance north of the crossing. The testimony about the brush pile is disputed. The weeds were not high
enough and the pile of brush, if one was there, was not large enough to have obscured the view, of a person situated as Allan was, of the train as it approached the crossing.
I. C. A., see. 60-412, requires that a locomotive bell be rung at a distance of at least eighty rods from the place where a railroad crosses a street, road or highway, and be kept ringing until it has crossed the same, or a whistle must be sounded, except in cities, at a like distance, and be kept sounding at intervals until the street, highway or road is crossed. Failure to conform to that section of the statute constitutes negligence.
(Wheeler v. Oregon R. R. etc. Co.,
16 Ida. 375, 102 Pac. 347;
Judd v. Oregon Short Line R. R. Co.,
55 Ida. 461, 44 Pac. (2d) 291.)
The testimony was sufficient to have taken the case to the jury on the question of negligence of respondents, consisting of failure to give the statutory warning signals of the approach of the train to the crossing, had contributory negligence not been established so clearly as to bring the case within the rule above stated. In other words, had there been conflict in the evidence as to contributory negligence on Allan’s part, or if the evidence had been reasonably susceptible of any other interpretation than that his conduct caused, or contributed to his injury the case should have gone to the jury.
The record conclusively shows that Allan, who was between sixteen and seventeen years old at the time of the accident, drove the truck in front of the train when he saw, or by the exercise of reasonable care, would have seen and known that, by so doing, he was endangering his life. The undisputed facts support no other theory than that his injury and death were due to his negligence. The evidence also conclusively shows that when he started across the track the fireman immediately gave the alarm to the engineer who did everything in his power to avoid the accident. Applying the rules of law, heretofore stated, to these facts, we are convinced the judgment should be affirmed, and it is so ordered. Costs are awarded to respondents.
Holden, C. J., and Ailshie, Budge and Givens, JJ., concur.
(May 24, 1939.)