Nucci v. Colorado & Southern Railway Co.

Chief Justice White delivered the opinion of the court. IN a suit by Nucci against the Colorado & Southern Railway Company, in damages for injuries sustained by him through the alleged negligence of the defendant, he was non-suited and brings the case here for review. The negligence of the defendant in failing to ring its bell, or blow its whistle, is conceded, and the sole question presented for determination is whether the plaintiff, on the undisputed facts, was guilty of contributory negligence. The damages were caused by a freight train striking the plaintiff while he was attempting to cross defendant’s railroad tracks with his team and wagon. The acts of negligence alleged were excessive and dangerous rate of speed of the train, and failing to ring the bell or blow the whistle, on approaching the crossing where the accident occurred. — 0 — — 583 — The defendant’s road runs in an easterly and westerly direction at this point. The highway along which plaintiff was driving runs in a northeasterly and southwesterly direction, and plaintiff was approaching the crossing from the southwest. Parallel with the highway, and approximately 30 feet west of it, are the tracks of the Denver & Rio Grande Railroad. For some distance west, the track of the defendant is on a down-grade to the crossing where the accident occurred, and thence east on an up-grade. The train that injured the plaintiff came from the west. In the angle formed by the defendant’s roadbed and the highway upon which plaintiff was traveling, are some cottonwood trees which, to some extent, obstructed the view of the track to the west. These trees, however, are 180 feet southwest of the intersection of the highway and the track. The only obstruction between the cottonwood trees and the crossing intersection, is some small willow trees which are 17 feet from the south rail of the defendant’s track, and 120 feet southwest of the crossing intersection. The distance between the willow and cottonwood trees is 60 feet. A map, prepared by defendant and introduced in evidence by plaintiff, shows that from any point on the wagon road 25 feet south from the crossing where the accident occurred, there is an open and unobstructed view along the track, and the right-of-way of defendant’s road, west, for a distance of 432 feet from such crossing; and from a point on the highway 120 feet south of such crossing there was an unobstructed view, with the exception of the small willow trees heretofore referred to, for a distance of 532 feet west along such, track and right-of-way. To the end that there be no misunderstanding of the matter, we here insert a photograph of the scene of the accident, made by defendant and introduced in evidence by plaintiff. A memorandum on the back of the photograph states that the photographer making it stood at a point 250 feet west of the center of the crossing, and that the man shown therein stood 30 feet south of the center of the track. It — 584 — will be observed that there is considerable open view disclosed by the photograph, perhaps 10 feet, to the south of where the man is shown, notwithstanding the trees were in full foliage. Plaintiff lived in the vicinity, and was perfectly familiar therewith and had traveled over the highway and crossing of the railroad where he was injured, two or three times a week for fifteen years. He testified concerning the accident, as follows “About thirty yards from the track I stopped my horses and looked and listened to see if a train was coming. The whistle did not blow, or the bell ring. I neither saw nor heard a train. I did not see the train coming. I was in the middle of the track when the train struck me.” And further, on cross-examination “I did not see the train until it struck me. Q. When you were right on the track just at the time you were struck, which way were you looking? A. I was looking where to go home. Q. Looking along the road in the direction of your home? A. I was looking the road.” And again: Q. Well, you mean you did not know about the train, isn’t that it? A. I meant to say I looked for the train, and I did not see nothing as I stated before, and things I say once I know I do not need to say fifty times. Q. Where was this point that you looked, where were you when you looked for the train? A. Thirty yards away.” And again “Q. You are absolutely sure you did not look at any point except where you have told me, thirty yards from that track? A. No, I did not look no other place. Q. How high were these trees that were out there by that point, thirty yards from the track? A. I do not know how high they are because I did not measure them. They are high enough, I can’t see through it. Q. They were so high and broad that it cut off your vision in the direction that the train was approaching? A. I could see nothing. Q. There were no holes through the trees, I mean no apertures between the trees that you could see through at that point? A. No. Q. Big, solid clump of trees that you couldn’t see through, no matter how long you looked? A. No, I couldn’t see. Q. Are you just as positive that — 585 — the trees were between that point and the approach of the train? A. I do not know any thing about it, you can ask me all the questions you want to, I cannot see the train for the trees.” On re-direct-examination: “Q. Is there a place through the trees about thirty yards from the track where you could see up the track? A. I could see nothing. Can’t see nothing. Q. What did you stop for? A. To look and see if any train was coming. Q. And you did not see any train coming, is that what you mean? A. Yes. Q. Is there an opening in the trees where you could see a train, if the train was on the track? A. There was no opening at all, it was all forest in there of trees. Q. Then what did you stop for, to look? A. To look. Q. What did you stop to look for if, you couldn’t see? A. Sometimes you can hear the train whistle. Sometimes you don’t see but you can hear the train whistle.” After some colloquy between court and counsel, the witness, without being interrogated, continued: “You get within about fifteen feet of the track before you get beyond the trees and can see down the track.” Counsel for plaintiff resumed his interrogation of the witness: “Q. When you got fifteen feet from the track did you look to see if a train was coming? A. Yes. It is about fifteen feet from the horses’ heads to where I sat in the wagon. When you are fifteen feet away from the track I believe the heads of the horses are about at the rail.” Witness further testified that the trees were about thirty to thirty-three feet to the west of the highway along which he was traveling, and then being interrogated by defendant’s attorney, testified as follows: “Q. Mr. Nucci, have you talked this matter over with your lawyer since last night? A. Yes. Q. You have got pretty well straightened out now how you want to testify, have you? A. Yes. * * * Q. You said yesterday that the team went on the track in a slow trot, is that true? A. Yesterday I did not understand. Q. Do you understand today? A. I believe I do understand. When I got within thirty yards, I stood up and looked around to see if any train is coming. From — 586 — that point the horses were walking slow, maybe one and one-half miles an hour. Yes, faster, sure, than a man can walk. Q. Are you absolutely sure that you did not see the train until it struck you? A. When it struck me is the time I saw the train. Q. Didn’t you see it before it struck you? No, I didn’t see it. I think the train hit between the taiaes and the wagon. * * * Q. Do you remember anything at all about the case except what your lawyer told you? A. Only what the attorney told me.” Plaintiff, in answer to questions propounded by his own attorney, further testified: “Q. Some thirty yards or so from the crossing can you see the railroad track through the trees? A. I could see. Q. You said you could see the railroad track from thirty yards from the crossing? A. Yes, Í could see. Q. How far up the track could you see there from the crossing? A. About 180 or 200 feet, something.like that.” And thereupon, being re-cross-examined, testified: “Q. That means that you could have seen from that point, one hundred and eighty feet up the track from the highway crossing? A. I could see; but I looked that day but I did not see nothing. I could see I guess about 180 feet from the crossing. Could not see further on account of trees. Q. So the trees were further than the 180 feet away from the crossing? A. Something like that.” We are of the opinion that plaintiff is not in a position to complain of the action of the court in entering a non-suit. It is clear from the undisputed facts that his own negligence contributed to his injury, and no other inference could be properly drawn therefrom. The effect of the facts of this case is the same as that in the case of Headley, et al. v. Denver & Rio Grande Railroad Co., 60 Colo. 500, where the authorities, involving the question of contributory negligence in cases of injury sustained through accidents at railway crossings, are reviewed and the law applicable thereto declared. That decision makes clear the distinction between mere negligence on the part of the railway company, and affirmative acts committed by it, which create a condition of apparent safety. There, — 587 — as in the case at bar, the negligence of the defendant was certain, but, as therein held, that in no wise relieved the party injured from taking ordinary precaution for his own safety. Plaintiff does not claim that the defendant was guilty of any affirmative act which created an appearance of safety at the crossing, or which tended to throw him off his guard or to lull him into a false sense of security. While it is not mentioned in the original briefs, attention has been called, in conference, to the fact that the record discloses that the tracks of the Denver & Rio Grande Railroad cross the tracks of the defendant company at a point about 30 feet west of the highway crossing where the accident occurred, and as § 5499, Revised Statutes of 1908, requires every train, on approaching the crossing of the tracks of another railroad, to stop and to cross such tracks at a speed not exceeding 4 miles per hour, the failure of defendant to do so in the instant case was negligence per se on its part. This has nothing to do with this case, for the simple reason that defendant’s negligence is conceded and the failure in question establishes only the fact of negligence. It in no wise constitutes an act on defendant’s part creating a condition of apparent safety. Moreover, there is no claim upon the part of plaintiff that he was relying upon defendant stopping its train at the crossing. In fact, it is stated by defendant, in brief on motion for rehearing, and not denied by plaintiff, that the Rio Grande track at this place was only a switch, and had been abandoned for many years prior to the accident, which fact was known to both sides of the controversy, at and- prior to the trial, and that no issue in relation to the same was raised at the trial. So the sole question is, was plaintiff negligent, and did his negligence contribute to the injury. It is established by an early decision of this court that a traveler approaching a public highway in the country, is charged with the duty of knowing that others may be negligent, and that he must act accordingly. C., B. & Q. R. R. Co. v. Campbell, 34 Colo. 380, 83 Pac. 138, 7 Ann. Cas. 987. It is equally — 588 — well established that the failure of the defendant to whistle or ring its bell did not relieve plaintiff of his duty to look and listen for the approaching train, and that such duty is not discharged by observation made at a point where obstructions make it impossible to ascertain if a train is approaching, where, after passing such obstruction, he could by looking and listening satisfy himself whether it is reasonably prudent to attempt to cross the line. Colo. & Sn. Ry. Co. v. Sonne, 34 Colo. 306, 83 Pac. 383; Colo. & Sn. Ry. Co. v. Thomas, 33 Colo. 517, 81 Pac. 801, 7 L. R. A. 681, 3 Ann. Cas. 300; C., R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286. Plaintiff testified several times very positively that he did not look for a train after passing the obstruction. In fact, that he only looked when he was 30 yards away from the crossing and that it was impossible to see at that point because the trees were so thick it was impossible to see through them. It may be said, however, that there is a statement in his testimony that he did look when about 15 feet from the track before going on the same, but did not see the train. He further testified, however, that “when you got within about that distance of the track you got beyond the trees, and can see down the track.” The trial court expressly rejected the statement, that he looked but could not see, as incredible and under the authorities he was required so to do. The law is well settled in this jurisdiction that when the evidence clearly shows that if plaintiff could have seen the train had he looked, his statement that he did look, but did not see, raises no conflict of evidence to be solved by the jury. Westerkamp v. C., B. & Q. R. R. Co., 41 Colo., 290, 296, 297, 92 Pac. 687. It follows that the opinion heretofore rendered herein by a department of this court must be withdrawn, the decision set aside, and the judgment of the trial court affirmed; and it is so ordered. Judgment affirmed. Decision en bane. — 589 — Mr. Justice Hill, Mr. Justice Scott and Mr. Justice Teller dissent.