Opinion
No. 33193.
Filed January 2, 1953.
1. Railroads: Negligence. The violation of a safety regulation that a locomotive engine shall ring a bell of a prescribed weight or sound a whistle thereon while traveling a given distance from where the railroad crosses any road or street is not negligence as a matter of law but must be considered with all the other evidence in the case in deciding the issue of negligence. 2. Trial. A litigant has a right to have his theory of a case presented to the jury by proper instruction only if it is pleaded and there is evidence to sustain it. 3. Railroads: Negligence. Beyond the limits of cities, villages, and towns no rate of speed of a train is generally in itself unlawful or evidence of negligence. 4. Automobiles: Negligence. If the operator of a motor vehicle is familiar with a railroad crossing and the surrounding conditions, it is his duty in approaching it to look and listen at a time and place where looking and listening will be effective even though vision of the railroad track is restricted. 5. ___: ___. It is the duty of the driver of an automobile to have it under such control that when he arrives at a place while traveling toward a railroad crossing where it is possible to see and to hear an approaching train he can stop and avoid a collision with it. 6. Negligence. Negligence which is the moving and effective cause of a happening is the proximate cause thereof.
APPEAL from the district court for Douglas County: CARROLL O. STAUFFER, JUDGE. Affirmed.
Joseph V. Benesch and Emmet L. Murphy, for appellant.
Chambers, Holland Groth, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The death of Hazel Grubb was caused by injuries inflicted upon her by a collision in the nighttime of a passenger train of the Chicago, Rock Island Pacific Railroad Company and a motor vehicle in which she was riding as a guest at a place where the railroad intersected and crossed the public highway on which she was traveling. Appellant sought to recover damages from the railroad company and Roy Ensign, the engineer of the train, on the claim that her death was wrongfully caused by their negligence. A verdict for appellees was the result of the trial in the district court.
The deceased, a resident of Demopolis, Alabama, was at Murdock in October 1950, for a visit with her sister Harriet B. Zabel, and her brother-in-law William H. Zabel. They made a trip to Omaha on October 9, 1950. The return from there to the place of the accident was in the evening, and was made in the automobile owned and operated by Mr. Zabel. He was the only occupant of the front seat. Mrs. Zabel was in the back seat directly behind her husband, and Mrs. Grubb was to her right. The night was clear, calm, and comfortable. The temperature was moderate enough that the glass in each of the front windows was lowered about one-half its length. The automobile was without defects and operated satisfactorily in all respects. The front glass was cleaned at the start of the return trip and visibility through it was unobstructed. The car was operated on the return journey at a speed generally of 40 to 45 miles an hour.
Mr. Zabel was 64 years of age, had good vision with or without glasses, and had operated a grocery store at Murdock, a village of 225 population, for 16 years. He was familiar with the roads, the intersection of the roads, the railroad, its crossing of highways, the trains of the railroad, and the locations and situations generally in and around Murdock.
There was a north-south highway on or near the east side of the village, and an east-west highway on or near the north side of it. They intersected near the northeast corner but outside of the village. The right-of-way and the track of the railroad company approached and crossed the intersection of the highways at an angle from the northeast to the southwest. The Zabel car approached the intersection of the highways and the railroad crossing from the east traveling on the east-west highway. It was a graveled road of uniform grade for at least one-half mile east of the intersection and railroad crossing, and was in good condition. The train involved in the collision was traveling southwest. The view of a traveler on the east-west highway east of the railroad crossing was to some extent obstructed by a cornfield, trees, posts, and weeds between the highway and the right-of-way of the railroad. But a train on the track moving from the northeast toward the crossing could be seen by a traveler on the highway if he looked towards the north at a point as much as 300 feet east of the crossing, and continuously thereafter as the train proceeded toward the crossing. The rails of the railroad track were visible to a traveler on the highway 75 feet east of the railroad crossing. There was an unobstructed view from 50 feet east of the east rail of the railroad track to the northeast for a distance of more than 300 feet, and an unobstructed view from 25 feet east of the east rail of the track to the northeast a distance of more than 363 feet.
The driver of the automobile knew that he was approaching the railroad track. About 100 feet from it he reduced the speed of the car and looked in the direction of the railroad track as he approached the crossing. It was then about 11:30 p. m. He knew there was a train scheduled for arrival about that time. He finally reduced his speed to 5 or 10 miles an hour before going upon the crossing. There was nothing to divert his attention and no noise to interfere with his hearing except that made by the operation of his car as it was in motion. He looked two or three times to see that there was no train on the track approaching the crossing while he was traveling from 50 feet east of the crossing until he was within 5 or 10 feet of the railroad track. When he was within 20 or 25 feet of the east rail of the track his speed was such that he could have stopped his car before it traveled more than 2 feet. He did not see or hear the train or any light from it or any signal by bell or whistle. About one-half the length of the automobile was across the northwest rail of the railroad track when the engine struck the right rear part of the car. The speed of the train at the time of the collision was 40 to 45 miles an hour. It had been previously not more than 50 miles an hour. Mrs. Grubb received serious injuries which after some delay resulted in her death.
There was no proof by appellant that his specification of negligence concerning disrepair and the incomplete condition of the crossing-warning sign near the place of the accident contributed to or proximately caused the accident, or that appellees knew or should have known that the automobile in which the decedent was riding was in a position of great distress and peril in time to have by any means avoided the collision. The action of the court in refraining from presenting either of these charges of negligence to the jury was proper.
The district court correctly submitted two specifications of negligence: (1) That appellees negligently failed to give a signal of the approach of the train to the crossing of the highway by it as the law provides; and (2) that the railroad company negligently failed to equip and maintain the engine of the train with a headlight of the power and in the manner required by law. The applicable provisions of the statute concerning the giving of signals at crossings and for locomotive engine headlights were set out by quotation. 74-573 and 74-583, R.R.S. 1943. The jury was also advised that a violation of any of the provisions thereof was not negligence as a matter of law but was evidence of negligence which the jury should consider with all the other evidence in the case to determine whether or not the appellees or either of them was guilty of negligence. Appellant claims this was error. He asserts that the statute on the subject of giving signals of the approach of a railroad train to a crossing of a highway (74-573, R.R.S. 1943) is a mandatory duty for the protection of human life and that a violation of it is negligence per se. The violation of this kind of a safety regulation established by statute is not negligence as a matter of law but may be considered in connection with all the other evidence in the case in deciding the issue of negligence. Eggeling v. Chicago, R.I. P. Ry. Co., 119 Neb. 229, 228 N.W. 361; Armer v. Omaha C. B. St. Ry. Co., 151 Neb. 431, 37 N.W.2d 607.
The distinction between statutes of this kind and statutes of the class involved in the case of Johnson v. Weborg, 142 Neb. 516, 7 N.W.2d 65, relied upon by appellant, is clearly made in Stevens v. Luther, 105 Neb. 184, 180 N.W. 87: "Statutes requiring protective devices to be placed upon machinery, upon barbed-wire fences, scaffolding statutes, railroad fencing statutes, fire escape statutes, and other statutes of like nature, impose a mandatory and affirmative duty upon the owners of such property, and even in states where the violation of speed statutes is held to be only evidence from which negligence may be inferred, the courts generally hold that a failure to perform a mandatory duty so enjoined is negligence per se, and if any person to whom the duty is owed, or for whose protection the statute is enacted, is injured in consequence of such violation, a case is made."
Appellant complains because the district court omitted from its instructions the last sentence of the statute that "Such corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect." 74-573, R.R.S. 1943. It is argued that it was the duty of the court to include this and its omission was prejudicial to appellant. The case of Vanderveer v. Moran, 79 Neb. 431, 112 N.W. 581, is relied upon to sustain the position of appellant. Too much is claimed for that case. There was no issue there or objection considered testing the correctness of or the error in the action of the court because it was stated in an instruction that the statute relied upon by the plaintiff provided that any person violating it should be liable for all damages that may accrue to the party damaged because of the violation. The basis of that action was a statute of a class different from the one requiring railroad trains to give signals of their approach to and crossing of a road or street. This distinction has been stated above. The trial court fully and clearly informed the jury of the elements and measure of damage in this case in the event the verdict was favorable to appellant. It was not required to do more in this respect.
It was pleaded that the speed of the train was excessive and negligent because the view of the railroad track was obstructed by unharvested corn, weeds, and posts, and that the crossing involved was near the limits of a village. The district court withdrew this from the consideration of the jury and informed it that speed of 50 miles an hour of this train was not negligence. Appellant construed this to be a violation of his right to have his theory of the case submitted to the jury. The law assures a litigant the right to have his theory of his case presented to the jury by proper instruction if, and only if, it is pleaded and there is evidence to sustain it. McKain v. Platte Valley Public Power Irr. Dist., 151 Neb. 497, 37 N.W.2d 923. The court observed its duty in this regard in this case to the extent that the theory of appellant had evidence to sustain it. There was no evidence of the claim that the speed of the train contributed to or caused the collision. The train was moving at a moderate speed, not more than 50 miles an hour in the open country, and 40 to 45 miles an hour as it came near to and upon the crossing. It is an interesting coincidence that the train and the automobile were operating at the identical speed when about 100 feet from the place of the accident. The contact of the train and the motor vehicle was in the open country. It is generally said that outside the limits of cities, villages, and towns no rate of speed of a train is in itself unlawful or evidence of negligence. Missouri P. Ry. Co. v. Hansen, 48 Neb. 232, 66 N.W. 1105; Omaha R. V. Ry. Co. v. Krayenbuhl, 48 Neb. 553, 67 N.W. 447; Omaha R. V. Ry. Co. v. Talbot, 48 Neb. 627, 67 N.W. 599; White v. Chicago, B. Q. R.R. Co., 93 Neb. 736, 141 N.W. 1038; Lake Shore M. S. Ry. Co. v. Barnes, 166 Ind. 7, 76 N.E. 629, 3 L. R. A. N. S. 778; Note, 5 L. R. A. N. S. 197.
The ability of a traveler proceeding west towards the crossing involved to see a train approaching the crossing from the northeast was to some extent restricted. But it was shown that a train on the track at any place at least 300 feet east of the crossing could have been seen by a west-bound traveler on the highway. A view of the track to the northeast whence the train was approaching was unobstructed from 50 feet east of the east rail of the track and the driver of the automobile had the ability when he reached that point, and at any time thereafter until he came to the track, to have stopped his car almost instantly. If the operator of a motor vehicle is familiar with a railroad crossing and the surroundings, it is his duty to look and listen at a time and place where looking and listening will be effective even though vision of the track is restricted. A failure to do so is less than the exercise of due or ordinary care and no recovery can be had for damages resulting from collision with a passing train. In Lewis v. Union Pacific R.R. Co., 118 Neb. 705, 226 N.W. 318, a building less than 25 feet from the crossing involved obstructed the view of the railroad track. Between the track and the building the view was unobstructed. This court said: "* * * It is the duty of the driver of the automobile to have his car under such control that, when he comes to a place where it is possible to see and to hear an approaching train, he can stop it to avoid a collision. Failure to do so is negligence more than slight in comparison with that of the defendant, and will defeat a recovery, even though the whistle was not blown and the bell not rung, or the speed may have been excessive." See, also, Loudy v. Union Pacific R.R. Co., 146 Neb. 676, 21 N.W.2d 431.
Ordinarily negligence which is the moving or effective cause of a happening is the proximate cause thereof. Loudy v. Union Pacific R.R. Co., supra. There was no causal connection between the speed of the train and the injuries to the deceased. Omaha R. V. Ry. Co. v. Talbot, supra. The speed of the train did not contribute to the collision and was in this case immaterial and liability could not be predicated thereon. The speed of the train was not involved in the failure of the operator of the automobile to see the train and stop his automobile before the collision. There is no evidence from which it can be inferred that he was in any way misled by the speed of the train or that he would not have driven his automobile in front of the oncoming train at whatever speed it was traveling. Whatever might have happened if it had been going more slowly is pure speculation. De Wildt v. Thomson, 241 Wis. 352, 6 N.W.2d 173; O'Malley v. Eagan, 43 Wyo. 233, 2 P.2d 1063, 77 A. L. R. 582; Burlie v. Stephens, 113 Wn. 182, 193 P. 684; Seaboard Airline R.R. Co. v. Crowder, 191 Va. 635, 62 S.E.2d 227. Implicit in the verdict is the conclusion that the collision of the train and the automobile did not happen because of the absence of a signal of the approach of the train or because the headlight of the train was not in operation. The finding of the jury adverse to appellant is conclusive of these matters. The effect of the verdict is that a crossing warning was given by the train and the headlight thereon complied with and was operating as required by law, and that the train could have been seen and the collision avoided by the least vigilance and attention by the driver of the automobile. He cannot be heard to say he gave attention and looked but did not hear the warning or see what was in plain sight. Armer v. Omaha C. B. St. Ry. Co., supra. The record sustains the verdict for appellees.
The argument of appellant that the issue of contributory negligence was presented to the jury without evidence to support it is contradicted by the record. The trial court informed the jury that any negligence of William H. Zabel, the driver of the car in which Hazel Grubb was riding, was not imputed to her, and that she was not guilty of any contributory negligence in this case.
The judgment of the district court should be and it is affirmed.
AFFIRMED.
WENKE, J., concurring in the result.