Union Pacific Railroad Company, a Utah Corporation v. Jimmie Rex Lumbert

401 F.2d 699

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 12, 1968
• Docket: 9735
• Status: Published

Opinions

BREITENSTEIN, Circuit Judge.

This case arises out of a railroad-crossing accident near Pine Bluffs, Wyoming. A jury awarded appellee-plain-tiff damages in the amount of $102,573 and the railroad appeals.

A road and two railroad tracks intersected at an angle of 60 degrees. The only warning sign or device was the familiar crossbuck. A signal box, telegraph poles, and some bushes partially obstructed the view. The surface of the road was rough and contained chuckholes. The railroad was aware of the crossing conditions.

The plaintiff traveled the road regularly going to work. He testified that he stopped, looked in both directions, heard no whistle or other warning, began to cross the tracks, and remembers nothing further until he was in the hospital. Three other witnesses testified that they heard no whistle. The railroad knew of several other personal injury accidents which had occurred at the crossing in the previous five years.

The engineer of the train and a brakeman sitting in the fireman’s seat testified that the train’s whistle was blowing and the bell ringing; that the headlights of the engine were on; that they saw the plaintiff’s car an unstated distance from the crossing ;¹ that the plaintiff was looking forward and “fooling” with something on the dash of the car; that the train was traveling 55-60 miles an hour; and that an emergency stop of the train at that speed would have required one and a quarter miles. The train and the car arrived at the crossing at the same instant.

We believe that the evidence is sufficient to establish negligence of the railroad. The crossing was dangerous and known by the railroad to be dangerous. The questions of whether the railroad should have provided special warning devices at the crossing, of whether warning was given by the blowing of the whistle, and of whether the speed of the train was excessive are for determination by the jury.² Certainly we cannot say that the evidence completely negatives negligence of the railroad and is susceptible of no reasonable inference to sustain the position of the plaintiff.³

The railroad says that the plaintiff was contributorily negligent as a matter of law because he cannot say that he looked and failed to see what was clearly visible, or could have been seen by the exercise of ordinary care.⁴

The accident occurred in Wyoming and we must apply Wyoming law. The Supreme Court of that state has often said that contributory negligence can be resolved as a matter of law only in the clearest case.⁵ The question of negligence is “determinable by the trier of fact if there is any evidence which would show or tend to show the relative care or negligence which was exercised, or if intelligent minds may draw different conclusions as to the matters at issue.”⁶

In Chicago, R. I. & P. R. R. Co. v. McFarlin, 10 Cir., 336 F.2d 1, cert. denied 379 U.S. 1001, 85 S.Ct. 721, 13 L.Ed.2d 702, we held that a motorist killed in a grade-crossing accident was contributorily negligent as a matter of law because under an unbroken line of New Mexico decisions a motorist approaching an open unguarded railroad crossing must “stop, look and listen for trains using the tracks, and the act of looking and listening must be performed in such manner as to make it reasonably effective.”⁷ We are cited to no comparable Wyoming decisions. In Chicago & N. W. Ry. v. Golay, 10 Cir., 155 F.2d 842, 847, a Wyoming grade-crossing accident case, we held that the question of contributory negligence was for the jury when the evidence showed that the train whistle was not sounded and the driver’s vision was partially obstructed. In the instant case there is evidence that the driver’s view was partly blocked, that his attention could have been diverted by the roughness of the crossing, that the angle at which the track and road met made observation difficult, and that the train did not sound any warning. In our opinion the evidence disclosed a situation in which reasonable men might differ in their conclusions as to the proximate cause of the accident. Under the facts presented, Wyoming law requires the determination of the contributory negligence issue by the trier of the fact.⁸

Without objection the jury was instructed on the doctrine of last clear chance. The jury returned a general verdict. The railroad argues that the evidence is insufficient to sustain recovery on the theory of last clear chance.

Our attention is- called to no Wyoming grade-crossing case considering the issue of last clear chance. In an automobile collision case, Wyoming has said that “the doctrine of last clear chance entails a clear and apparent opportunity to avoid the result.”⁹ There is some doubt whether the record contains evidence to show that the engineer of the train had a “clear and apparent opportunity” to avoid the accident. In the circumstances we need not resolve the question.

The problem is whether on the record presented the railroad is in a position to seek a reversal on the ground of insufficiency of the evidence ,to sustain recovery under the doctrine of last clear chance. At the close of the plaintiff’s case and at the close of all the evidence the railroad moved for a directed verdict on the sole ground that “there is no substantial evidence to support a judgment for the plaintiff.” The motions were denied. The court twice instructed the jury on last clear chance and the railroad objected neither time.¹⁰ The jury returned a general verdict for the plaintiff.

In the absence of a pertinent objection to the charge or a request for a specific interrogatory a “general verdict is upheld where there is substantial evidence supporting any ground of recovery in favor of an appellee.”¹¹ In the case at bar the evidence on the negligence issue is sufficient to sustain a verdict for the plaintiff.' The argument of the railroad is that the jury might have been misled into deciding the case for the plaintiff on the ground of last clear chance. The only way it could have been misled is by an erroneous instruction. The railroad did not object to the last clear chance instruction although it had two opportunities to do so. In such a situation Rule 51, F.R.Civ.P., precludes consideration of the instruction.¹² To hold otherwise would be to permit a party to deliberately acquiesce in the tendering of a theory he knew to be erroneous so as to guarantee himself a second trial if the first resulted in an unfavorable jury verdict. On this appeal the railroad cannot take advantage of an objection which it never presented to the trial court.

Affirmed.

1 . The testimony was that the whistle began blowing before the train reached the “whistling board” and that the car was seen when the train was about halfway between the “whistling board” and the crossing. The “whistling board” is 1300-1400 feet from the crossing.

2 . Cf. Chicago & N. W. Ry. v. Golay, 10 Cir., 155 F.2d 842, a case concerning a Wyoming grade-crossing accident.

3 . Cf. Christopherson v. Humphrey, 10 Cir., 366 F.2d 323, 326.

4 . See McDowall v. Walters, Wyo., 360 P.2d 165, 169, rehearing denied, Wyo., 361 P.2d 528.

5 . Ford Motor Co. v. Arguello, Wyo., 382 P.2d 886, 892, and cases there cited.

6 . Meredith GMC, Inc. v. Garner, 78 Wyo. 396, 328 P.2d 371, 373.

7 . Id. at 2.

8 . Sinclair Refining Co. v. Redding, Wyo., 439 P.2d 20, 24.

9 . Dr. Pepper Co. v. Heiman, Wyo., 374 P.2d 206, 212. In Johnston v. Vukelic, 67 Wyo. 1, 213 P.2d 925, 931, Wyoming adopted the statement of the last clear chance rule found in Restatement, Torts, § 480, pp. 1257-1258.

10 . The second instruction on last clear chance was given in response to a question submitted by the jury during its deliberations.

11 . Vareltzis v. Luckenbach Steamship Co., 2 Cir., 258 F.2d 78, 80. See also Cross v. Ryan, 7 Cir., 124 F.2d 883, 887, cert. denied 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755; State Fuel Co. v. Gulf Oil Corp., 1 Cir., 179 F.2d 390, 396-397; and Moore v. Stephens, 6 Cir., 271 F.2d 119. Wyoming has followed the principle stated. Colwell v. Anderson, Wyo., 438 P.2d 448, 452.

12 . Dunn v. St. Louis-San Francisco Ry., 10 Cir., 370 F.2d 681, 683.