Lundquist v. Kennecott Copper Co.

CALLISTER, Chief Justice: Plaintiff, motorist, initiated this action to recover damages for the personal injuries he sustained in a collision with a train operated by the defendants. Defendants, on the basis of the pleadings and depositions, moved for summary judgment, which the trial court granted. Plaintiff appeals therefrom, urging that the trial court erred in finding him contributorily negligent as a matter of law. Plaintiff, who resided in Murray, Utah, was returning to his home from Tooele on April 1, 1970, at approximately 7 o’clock in the evening. Due to plaintiff’s unfamiliarity with the area, he missed the Bacchus turnoff and continued in a southerly direction to approximately 6200 South. In this area he observed a dirt road which appeared to go in an easterly direction towards Kearns, and he turned and proceeded thereon. After traveling down this road for a distance in excess of a mile, he observed a cross buck marking a railroad crossing approximately 70 or 80 feet ahead. Plaintiff’s view of the tracks in a northerly direction was obstructed by an embankment which was approximately 300 yards in length, 30 feet wide, and 15 to 20 feet high. Plaintiff estimated his speed at approximately 10 to 15 miles per hour. He testified that as he proceeded to the crossing he looked to the north and observed nothing since the embankment extended to [264] a distance approximately 10 feet north of the crossing. He looked in a southerly direction, where his view was unobstructed, and he saw nothing. As he looked to the north again, the train and vehicle collided. Plaintiff conceded that there was sufficient space prior to crossing the tracks where a vehicle could stop, and the driver would have an unobstructed view in a northerly direction to determine if a train were approaching. To support their motion for summary judgment, defendants submitted a memorandum wherein they cited Sec. 41-6-95, U.C.A.1953. They successfully urged that this statute was mandatory in its requirement that all motorists in approaching a railroad crossing must stop prior to crossing the track. Plaintiff concededly had not stopped prior to proceeding onto the tracks and was therefore contributorily negligent as a matter of law. Defendants further cited relevant case law analyzing a driver’s duty in approaching a railroad crossing in terms of common law principles, and compared plaintiff’s actions thereto. Specifically, defendants contended that plaintiff did not fulfill his duty of due care when he failed to look for a train at a point where his view was unobstructed prior to his crossing the tracks. In a memorandum decision, the trial court ruled that Sec. 41-6-95, U.C.A.1953, was mandatory and that a motorist, upon approaching a railroad crossing, was obligated to stop and not to proceed until he could do so under certain named conditions. The opinion stated that plaintiff did not stop his vehicle, that each party was proceeding at a relatively slow speed, and that at the time plaintiff entered upon the railroad track, he was immediately struck by the train. The court was of the further opinion that the train was plainly visible to the plaintiff at the time he entered the crossing and was in a hazardous proximity to the crossing at that time, Sec. 41-6-95(a)(4), U.C.A.1953. The trial court ruled that plaintiff was contributorily negligent as a matter of law on the grounds: (1) In failing to stop; (2) In not determining that an approaching train was in hazardous proximity to the crossing. On appeal, plaintiff contends that the trial court improperly interpreted Sec. 41-6-95, U.C.A.1953, as compelling all motorists to stop upon approaching a railroad crossing. Section 41-6-95, U.C.A.1953 provides: (a) Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty feet but not less than ten feet from the nearest track of such railroad and shall not proceed until he can do so safely when: (1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train. [265] (2) A crossing gate is lowered, or when a human flagman gives or continues to give a signal of the approach or passage of a train. (3) A railroad train approaching within approximately 1,500 feet of the highway crossing emits a signal audible from such distance and such train by reason of its speed or nearness to such crossing is an immediate hazard. (4) An approaching train is plainly visible and is in hazardous proximity to such crossing. [Emphasis added.] The term “whenever” means at any and all times.1 The statute establishes a standard that at any and all times that a motorist approaches a railroad crossing, he shall stop and not proceed until he can do so safely when (on the conditions that) 2 one of the four enumerated circumstances are subsisting. Each of the four specified conditions are qualified by the word “when” and thus each becomes an adverbial clause explaining the circumstances under which the motorist is mandated to “stop.” This interpretation is consistent with Sec. 41-6-96, U.C.A.1953, which completes a statutory scheme declaring the circumstances under which a motorist is commanded to stop at railroad crossings. This latter statute authorizes state or local authorities to designate as particularly dangerous a grade crossing of a railroad and to erect a stop sign thereat. The statute then provides: “ . . . When such stop signs are erected, the driver of any vehicle shall stop within fifty feet, but not less than ten feet from the nearest track of such grade crossing and shall proceed only upon exercising due care and observing that no train or trains are approaching.” The interpretation by the trial court of Section 95 renders Section 96 redundant and meaningless. When the duty to stop in Section 95 is qualified by the enumerated conditions and then correlated with Section 96, there emerges a complete statutory scheme. The trial court recognized that its interpretation of Section 95 might not be upheld ; so it further found that plaintiff had a duty to stop since condition 4 of Section 95 existed, i. e., an approaching train was plainly visible and was in hazardous proximity to such crossing. Section 41-6-95, U.C.A.1953, is a statutory acknowledgment of the common law concept that because of the momentum of trains, the confinement of their movements to the track, and the necessity and public nature of railway traffic a railway company has the right of way.3 Of [266] course, both parties must exercise reasonable care and diligence to prevent injury. Since a railroad track is itself a warning of danger, a traveler is duty bound to exercise proper precaution to inform himself as to the proximity of trains before attempting to enter and to go over a crossing.4 The law requires that a traveler, approaching a railroad crossing, look and listen, and, if necessary, stop to avoid being injured by trains. This is his duty at all times and on all occasions, whether his view be obstructed or unobstructed, and the greater the hazard or danger surrounding him, the greater is the care required of him.5 A plaintiff is contributorily negligent as a matter of law, if all reasonable minds would conclude that he failed to use the degree of care which an ordinary, reasonable, and prudent person would have observed for his own safety under the circumstances.6 The undisputed facts of the instant action indicate that there was a zone from which plaintiff could have taken an unobstructed look at the tracks in a northerly direction prior to his entering the crossing. This case is factually similar to Steele v. Denver and Rio Grande Western Railroad Co.7 wherein this court observed that although Steele’s visibility was not obscured by the fill embankment or any other condition within ten feet of the track, he proceeded onto the track without stopping or observing the approaching train. The tracks were there to be observed, as was the railroad’s warning sign upon its right of way. The failure of Steele to observe the fundamental rules of common sense and the law in driving his motor vehicle was negligent as a matter of law. The judgment of the district court is affirmed. Costs are awarded to defendants. HENRIOD and TUCKETT, JJ., concur. Footnotes [1] Webster’s Third International Dictionary. [2] Webster’s Third International Dictionary. [3] Pippy v. Oregon Short Line R. Co., 79 Utah 439, 451, 11 P.2d 305 (1932). [4] Id. at 452 of 79 Utah, 11 P.2d 305. [5] Steele v. Denver & Rio Grande Western Railroad Co., 16 Utah 2d 127, 130, 396 P.2d 751 (1964); Benson v. Denver & Rio Grande Western Railroad Co., 4 Utah 2d 38, 42-43, 286 P.2d 790 (1955). [6] Benson v. Denver & Rio Grande Western Railroad Co., Note 5 supra. [7] Note 5, supra.