Opinion
July 11, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 626
Decker, Robertson, Shuey & Miller, Dennis M. Miller, Denver, for plaintiffs-appellants.
Houtchens, Houtchens & Dooley, John J. Dooley, Greeley, for defendants-appellees.
DWYER, Judge.
This action involves a collision between a motor vehicle and a train at a railroad crossing. Plaintiffs sought to recover for personal injuries and property damage sustained in the collision based upon their allegations that the defendant railroad company negligently failed to provide adequate warning devices at the crossing and that the defendant engineer negligently operated the train. The action was tried to a jury, and at the close of plaintiffs' evidence, the court directed a verdict for all defendants. Plaintiffs have appealed the judgment entered pursuant to the directed verdict.
On this appeal, plaintiffs contend that their evidence was sufficient to establish a prima facie case which should have been submitted to the jury. We affirm the judgment.
Highway 34 is an east-west road between Greeley and Loveland, Colorado. The defendant railroad company's tracks cross this highway at a point about seven miles east of Loveland. Westbound travelers on Highway 34 are warned of this crossing by a sign located 591 feet east of the crossing and by a crossbuck sign located 50 feet east of the crossing. Both signs are on the right shoulder of the highway. A westbound traveler on the highway has an unobstructed view of the railroad and the crossing from a point approximately 1,500 feet east continuously to the crossing, and a similar view of the highway exists from a locomotive.
On the afternoon of December 14, 1965, plaintiff Elsie Overfield, traveling west on Highway 34, drove her car into a locomotive pulling a train across the highway at this crossing. She and her two children riding with her in the car were injured. The weather was clear, and there were no limitations on visibility. The road was icy in spots, but the approach to the crossing was cindered.
Elsie Overfield had no recollection of the accident, and her children were asleep in the car. In consequence, there is no testimony which in any way explains her failure to see the train and to stop at the crossing.
Plaintiffs called the engineer of the train and attempted by cross-examination to prove that he was negligent. The engineer testified that when he was approaching the crossing he saw the Overfield car when it was approximately 1,500 feet east of the crossing, and, at that time, the train was approximately 625 feet from the crossing. He said that the lights on the locomotive were flashing, and the automatic bell was continuously ringing. He testified that, when he saw the Overfield car, he sounded the horn on the train and continued to do so as he approached the crossing. The engineer said that at the speed he was traveling he could stop the train in about 200 feet. He said he applied the brakes when the train was about 95 feet from the crossing and that the train was sliding through the crossing when the Overfield vehicle smashed into the rear of the locomotive.
It is plaintiffs' theory that the engineer was negligent in failing to apply the brakes sooner, and they also contend that the engineer had 'a last clear chance' to avoid the collision. There is no evidence to support either of these theories. A railroad train at a grade crossing has a right of way over highway travelers, and the railroad has no duty to slow down or stop its train when approaching the grade crossing until such time as it becomes apparent that the highway traveler is not going to stop and yield the right of way to the train. See Union Pacific Railroad Co. v. Gaede, 10 Cir., 110 F.2d 931. Accordingly, the engineer of a train may reasonably assume when he sees an automobile approaching a marked crossing that its driver will stop at the crossing. He is not required to assume otherwise until in the exercise of reasonable care he should apprehend danger. There is no evidence from which a reasonable inference could be drawn that the defendant engineer was negligent in failing to apprehend, at a time when he could stop the train, that the Overfield car would not stop at the crossing.
Plaintiffs contend that Elsie Overfield was not warned by proper signals of the approaching train. The engineer testified that the signals were given by both bell and horn. The bell was actuated by an automatic ringer which the engineer said was turned on. The engineer also said that he blew the horn repeatedly as he approached the crossing. A motorist following the Overfield car testified that he saw the train in time to stop at the crossing. Another motorist driving east on Highway 34 saw the train and stopped at the crossing. Neither witness could recall hearing the horn. Both drivers approached the crossing with their windows closed and car heaters on. One driver had his radio turned on.
In appropriate circumstances, testimony by a witness that he did not hear a whistle can create an issue of fact as to whether the whistle was blown. Lee v. Missouri Pacific Railroad Co., 152 Colo. 179, 381 P.2d 35; Union Pacific Railroad Co. v. Shupe, 131 Colo. 271, 280 P.2d 1115. However, such testimony has probative force only where the witness is so situated that he could have heard the whistle had it been sounded. See Hunt v. Douglas, 238 Or. 560, 395 P.2d 774. See also Denver & Rio Grande Western Railroad Co. v. Lipscomb, 164 Colo. 506, 437 P.2d 554; Union Pacific Railroad Co. v. Gaede, Supra. In the present case, both witnesses conceded that, although they did not hear it, the horn may have been sounded. Their negative testimony was insufficient to raise a factual issue requiring submission of the case to the jury.
The trial court properly directed a verdict for the defendants. Our Supreme Court, in Lee v. Missouri Pacific Railroad Co., Supra, stated that:
'Motions for directed verdict present a question of law and in deciding the motion the court must consider the evidence in the light most favorable to the party against whom the motion is directed; every fact supported by credible evidence must be resolved in his favor and the strongest inferences reasonably deducible from the most favorable evidence should be indulged in his favor.'
Where, as here, the evidence when considered most favorable to the plaintiff fails to establish a prima facie case of negligence against the defendant, a directed verdict is proper. See Dwinelle v. Union Pacific Railroad Co., 104 Colo. 545, 92 P.2d 741.
Plaintiffs correctly assert that the negligence, if any, of Elsie Overfield cannot be imputed to her children who were passengers in the car. The directed verdict in this case was properly entered because there was no evidence of negligence on the part of the defendants. It was therefore proper to direct the verdict against the minor plaintiffs even though the negligence of Elsie Overfield could not be imputed to them so as to bar their recovery.
Plaintiffs presented no evidence in support of their allegations that the crossing was negligently designed, constructed, and maintained or that the railroad failed to provide adequate warning devices. Plaintiffs contend that no evidence on this issue was presented because the trial court ruled that no such evidence would be admitted unless it was first established that the railroad crossing was in violation of standards established by the Public Utilities Commission.
The record does not support plaintiffs' contention that the court made such a ruling. During a discussion between counsel and the court in chambers, counsel for the defendants asserted that plaintiffs could not introduce such evidence without first establishing that the design, construction, and maintenance of the crossing and the warning devices were in violation of standards established by the Public Utilities Commission. The court specifically reserved ruling on this question until such evidence was offered by plaintiffs. No such evidence was offered at the trial, and nowhere in the record is there an offer of proof disclosing the evidence which plaintiff claims was excluded. The only evidentiary rulings made by the court during the course of the preliminary discussion with counsel were that plaintiffs would not be permitted to present evidence concerning warning devices located at another of the railroad's crossings or evidence concerning the adequacy of the Public Utilities Commission's standards for warning devices. There was no error in these rulings.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.