Denver & Rio Grande Western Railroad v. Duff , 145 Colo. 104 ( 1960 )

Mr. Justice Hall

delivered the opinion of the Court.

The parties appear here in reverse order of their appearance in the trial court. We refer to the plaintiffs in error as defendants or the Railroad, and to the defendant in error as Duff.

Duff brought this action to recover damages for injuries to his person and property arising out of a collision between his car and a passenger train owned and operated by the Railroad.

The collision occurred at about 4:30 P.M., June 7, 1957, at a point where West Hampden Avenue crosses the tracks of the Railroad at the outskirts of Englewood, Colorado.

Trial to the court without a jury resulted in a judgment in favor of Duff and against the Railroad and defendant McAlroy, who was the locomotive engineer operating the train involved in the collision.

The defendants are here by writ of error seeking reversal of the judgment.

Among the grounds urged for reversal are the following:

1. Error in not finding that the proximate cause of the collision was the act of Duff in backing his car into the path of the approaching train;

2. Error in holding that the Railroad was guilty of negligence in operating its train at a speed of sixty miles per hour at the time and place in question;

3. Error in holding that the speed of the train was the proximate or a contributing cause of the collision.

At the place of the collision Hampden Avenue runs east and west, the tracks of the Railroad north and south. Three tracks are crossed by Hampden Avenue; the northbound main line is the easterly track; west of this track is a spur, or industry track; nine feet west of this industry track is the southbound main line track on which the train involved was traveling. On the day in question the weather was clear and dry, visibility excellent, and the westbound motor traffic on Hampden Avenue at the point of crossing fairly heavy.

Safety devices of the Railroad at this crossing consist of flashing red lights, bells and automatic gates tipped with red lights. Dartmouth Avenue is 2711 feet north of this Hampden crossing. A southbound train traveling south on the most westerly track at a speed of sixty miles an hour, or over, activates these devices at a point 1287 feet north of Dartmouth Avenue. Immediately on being activated the bells at the Hampden intersection start to ring and the lights to flash; eight seconds thereafter the gates start to lower and the bells, lights and gates continue to operate until the train has passed the intersection. If the train is traveling at a speed, of less than sixty miles per hour, the safety devices are so activated when, and not until, such train reaches Dartmouth. Thus it mathematically appears that the bells ring and lights flash at Hampden for more than thirty seconds before the train reaches the crossing and this is true whether the train is traveling more or less than sixty miles per hour.

A westbound motorist approaching the Hampden crossing, when a train is coming, is confronted with four flashing red lights on his traffic lane and, as further warning, the ringing of the crossing bells. His view of the tracks to the north and of an approaching train from that direction is clear and unobstructed from a vantage point east of the easterly track and at all points to the west thereof as far as Dartmouth Avenue.

The train involved in this collision consisted of three Diesel units and nine passenger cars. It was traveling south on the most westerly of the tracks and as it crossed Dartmouth it was traveling just under sixty miles per hour, so the safety devices were activated as the train crossed Dartmouth.

Duff was driving his car, a 1956 Chevrolet, west on Hampden. The evidence shows that he was thoroughly familiar with the crossing. He approached the crossing from the east at a very moderate speed, estimated at about five miles per hour, traveling in the south portion of the north traffic lane, and he, according to findings of the trial judge well supported by the evidence, was at least twelve feet east of the most westerly track when the lights and bells were activated by the train 2711 feet to the north and over thirty seconds in time from the crossing. In spite of these warnings and in spite of the fact that at that time and place the approaching train was plainly visible to one in his position, he proceeded on and crossed the most westerly track following (according to Duff) some five or six feet behind a pickup truck being driven by one Rex. He crossed the most westerly track and was from two to six feet to the west thereof when his further progress was blocked by the Rex pickup truck standing in the traffic lane ahead of him. Rex had stopped as he reached Santa Fe Drive, because of a red light and northbound traffic thereon. Duff pulled up behind him and stopped. He honked his horn and waved to Rex to move forward. Rex did not move and he testified that he could not move forward without getting into Santa Fe Drive and traffic thereon and that there was a space of three or four feet between his truck and Duff’s car. Duff testified that the space was about one foot.

The evidence is undisputed that the front end of the Rex truck was thirty-seven and a half feet to the west of the west rail, his truck was fifteen and two-thirds feet in length, the length of Duff’s car was sixteen and five-twelfths feet long. Had the two cars been touching, the rear end of Duff’s car would have been five and five-twelfths feet from the west rail and three feet from the west side of the engine. Duff was very positive in his testimony that he was within one foot of the truck of Rex; according to that he would be stopped two feet clear of the engine.

Duff, believing that the rear end of his car was not clear of the track and seeing the train approaching from the north, attempted to back easterly away from the Rex pickup, intending to pull into the right traffic lane which was clear of traffic and move west in that traffic lane away from danger. Testimony was to the effect that he backed east from two to six feet; Rex denies this and testified that he stalled his motor and his car never moved. The right rear tip of his car was struck by the right front overhang of defendant’s locomotive. Duff’s car was damaged, and although he had finally jumped out of his car at the last moment he failed to clear his own car and was knocked down and injured when his car was pushed southward by the impact of the engine.

The trial judge did not formally find the facts, state his conclusions of law or file an opinion or memorandum of decision as contemplated and provided by Rule 52 (a), R.C.P. Colo. However, in the record we find some sixty folios of observations, statements and conclusions of the trial judge, including many statements of facts dehors the record, facts of which the judge took judicial knowledge, and other facts apparently garnered from viewing the scene of the collision.

The trial court did conclude that Duff was at least twelve feet east of the west track at the time the warning signals, red lights and bells were activated, and concluded that in proceeding against the red lights and the warning bell Duff acted as a reasonably prudent man, and was not negligent.

He also expressly found that Duff, after crossing the track, did back up:

“I believe that he did move his car backward. * * * Two witnesses, one being an independent witness, Dr. Castelano, testified they saw the car go back two or three feet; four feet, one foot * * * in any event it went backwards.”

On the question of fact as to whether Duff’s car was clear of the approaching train prior to its being backed up, the court not only made no finding, but stated that the answer is unknown to the court:

“Whether in fact or not Mr. Duff actually cleared the trackage is unknown to the court.”

There was ample evidence on the question to have made a finding. Duff testified that his car never moved backward and yet it was hit, so, according to the testimony of Duff, it was not clear of the train. On the other hand, Dr. Castelano testified that he thought the car was clear of the track. Pat Herndon, a passenger in Duff’s car, thought it was in the clear. Defendant Mc-Alroy, who had a perfect view from his engine cab, of the track and Duff’s car, testified that Duff’s car was six feet clear of the train until the train was about two hundred feet from the crossing when Duff backed his car into the path of the train.

The court also concluded that the Railroad, in approaching the Hampden crossing at a speed of sixty miles per hour (which speed is admitted), was guilty of negligence as a matter of law and that such negligent conduct was the proximate cause of the collision.

We are unable to agree with the conclusion of the trial court that for Duff to cross the track against the red lights and with the warning bells ringing was the act of a prudent man and did not constitute negligence. Even Duff, it appears, was aware of the fact that he should not drive through red lights, and in order to escape the consequences of so doing, he, contrary to all of the other testimony, the physical facts and the findings of the trial court, testified that the warnings did not come until he had crossed the track. The trial court found this fact against Duff and erroneously concluded that conduct, negligent as a matter of law, was not negligence at all. It is true that Duff crossed the track, or partially crossed the track, without incident at that time, but it was the act of crossing that got him into a position of peril, which whether real or fanciful the court was unable to decide.

The proximate cause of the collision was the fact that Duff moved his car backwards. The court found that Duff backed up and in so doing reached a position where the overhang of the engine struck his car. Such backing up was the proximate cause of the collision. The fact that the trial judge was unable to determine whether Duff was clear of the train does not alter the situation. If he was in the clear, certainly his backing up was the cause of the collision; and if he was in the path of the train before backing up, his backing up and stalling his car only added to his primary negligence in having his car on the track.

If running the engine at a speed of sixty miles per hour was negligence on the part of the Railroad, as the trial court concluded, and on which question we need express no opinion, such negligent speed was not and could not be the proximate cause of the collision. Even if the engine had been going only ten miles per hour, it would collide with an object on the track just as certainly as one going one hundred miles per hour.

Had the train been going slowly, it is possible that McAlroy might have been able to bring the train to a stop and thus save Duff from the normal consequences of his negligence. However, the parties do not argue or contend that the doctrine of last clear chance is applicable in this case and such issue was never considered by the court.

Duff testified that he did not see the approaching train until he had crossed the track and stopped behind Rex. The approaching train was plainly visible from the Hampden Street crossing. There was nothing obstructing Duff’s view. The fact that he did not see the approaching train or the crossing lights does not relieve him from negligence. It was his duty to see that which was plainly visible. Gunby v. C. & S. R. R. Co., 77 Colo. 225, 255 Pac. 566; Nucci v. C. & S. Ry. Co., 63 Colo. 582, 169 Pac. 273; Union Pac. v. Cogburn, 136 Colo. 184, 315 P. (2d) 209.

Even accepting Duff’s contention that the signals did not function until he stopped behind Rex, at which time he first saw the train and was then in the path of the approaching engine, he still had thirty seconds of time to remove his car from the track or, failing in that, to remove himself from the car to a position of safety. He did neither.

In Straight v. Power Co., 73 Colo. 188, 214 Pac. 397, we said:

“One whose injury is due, in whole or in part, to the fact that he has negligently and without excuse placed himself in a position of known danger can not recover. Jackson v. Crilly, 16 Colo. 103, 107, 26 Pac. 331.

“The rule is equally applicable to one who having taken such position without knowledge of the danger, or even upon assurance of its nonexistence, thereafter becomes fully cognizant of the danger of the position and negligently and without excuse remains. The reason for the rule applies with double force where the danger is apparent but its source and method of approach are hidden.”

Duff in crossing the tracks against the warning signals was guilty of negligence as a matter of law. In knowingly backing his car into the path of the approaching train he was guilty of further negligence as a matter of law. This conduct on his part was the proximate cause of the collision and of his injury and property damage. Such conduct precludes him from recovery herein.

The judgment is reversed and the cause remanded with directions to dismiss the action.

Mr. Justice Frantz concurs in the result.

Mr. Chief Justice Sutton, Mr. Justice Moore and Mr. Justice Doyle dissent.