Keith v. Great Northern Railway Co.

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

Plaintiff brought action against defendant to recover damages to a Ford automobile and sewing-machine by reason of *508 their being struck by a train of defendant company at its crossing on Oak Street, in the city of Helena. Verdict and judgment were rendered in favor of plaintiff. Defendant appeals from the judgment.

The vital point involved in these appeals is whether or not plaintiff was guilty of contributory negligence as a matter of law, barring his recovery. The evidence discloses the following undisputed facts: Oak Street runs in a northerly and southerly direction. As plaintiff approached the crossing from the north, he was proceeding at a rate of speed in excess of eight miles an hour. The view of the railroad track was obstructed by buildings on each side of the street until he reached approximately the northerly line of the right of way. Plaintiff’s own testimony was that he was about twenty-six feet from the north rail of the track when he first saw the train, which was then heading into the block. His statement of his actions from the time he saw the train was as follows: “When I came in sight of the road [railroad] I saw the train coming, and I shut off, and I thought it would easily stop before I got in front of the train, at the speed it was going. I shut her right off. The front wheel went across the track. It is planked for only one rig, one team, or whatever it might be to cross, and when she came around, the front wheel had touched the track; the right front wheel came off the planking and struck this rail, that is, the rail next to me, the way I was coming up, and it skidded me down the track. I put the brake on and jumped off as I saw it. It probably went three or four feet before it stopped.”

From the foregoing statement it appears that from the time plaintiff saw the train until he reached the track he merely shut off the power and allowed the car to coast, but did not apply the brakes, thinking that the automobile would stop before he reached the track. It coasted farther than he thought it would, and the right front wheel went off the planking, struck the rail, and caused the automobile to skid down the track, at which time he applied the brake, stopping it within *509 three or four feet from the planking. The automobile was a comparatively new one, and the brakes were in good condition.

[1] The rule as to the caution with which one must approach a railroad crossing in this state without being guilty of negligence has been thoroughly established, and requires a person to use his senses vigilantly to determine whether or not a train is approaching, before he goes upon the track. This requires that he use his eyes and ears, and, if necessary to make his looking and listening reasonably effective, he must stop at such point as will accomplish that purpose. The case of George v. Northern Pac. Ry. Co., 59 Mont. 162 , 196 Pac. 870 , involves facts very similar to those of this case, and is conclusive upon the question here to be determined. There the rule is stated by Chief Justice Brantly, as follows: “This statement of the rule requires the person approaching a railway crossing to take all reasonable precaution to assure himself by actual observation that there is no danger from an approaching train. The failure of the persons in charge of the train to keep a lookout and to give warning signals of its approach to the crossing does not relieve the traveler from the necessity of making a vigilant use of his senses to ascertain whether it is safe to proceed. (Railroad Co. v. Houston, 95 U. S. 697 , 24 L. Ed. 542 [see, also, Rose’s U. S. Notes]; Hunter v. Montana Central Ry. Co., 22 Mont. 525 , 57 Pac. 140 .) It is not always sufficient if he does look and listen. The obligation resting upon him is to exercise care to make the act of looking and listening reasonably effective. (Sprague v. Northern Pac. Ry. Co., 40 Mont. 481 , 107 Pac. 412 .) If he goes upon the crossing without taking this precaution, he is guilty of contributory negligence, and, if injured, cannot recover.”

[2] From the evidence in this case it appears that if plaintiff was not traveling to exceed eight or ten miles an hour, he could have stopped his automobile within a space of seven feet without injury to the car. He had twenty-six feet after he saw the train within which to make his stop. The conclusion is *510 irresistible, either that he was traveling at a rate of speed so far in excess of eight miles an hour that he did not have his car under proper control so that he could stop within the twenty-six feet, or, if he was not traveling to exceed the eight miles an hour as he testified, that he did not use reasonable or ordinary diligence to bring his car to a stop. From his own testimony he did not even apply the brakes until after the front wheel was on the track. These facts present a situation of inexcusable neglect and failure even to use the means at his disposal for his safety, and which, it would seem, would be the first means to be applied by any ordinary person to escape the danger of the approaching train after such danger was seen. The plaintiff was guilty of contributory negligence, as a matter of law, without which the accident would not have happened and which is a complete bar to his recovery.

The judgment is reversed, with directions to the district court to enter judgment for defendant.

Reversed.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.