Allan v. Oregon Short Line R. Co. , 60 Idaho 267 ( 1938 )

The fireman after testifying, as shown in the original opinion, that the truck was standing 12 or 15 feet from the east rail when the locomotive was about a half or three-quarters of a mile from it, was cross-examined and testified repeatedly to the same effect. During his cross-examination he testified further, that the boy started the truck across the track within a second or two after he got in it. He was asked:

"Q. And at the time that he got in you were about 2,000 feet to the north?

"A. When he got into the truck; yes, sir."

It is urged that it was the duty of the fireman to warn the engineer, as soon as he saw the truck start forward in front of the approaching train, and that the case should have gone to the jury for a decision as to whether he had time to prevent the accident, by giving the warning, when the truck started.

The statement of the fireman to the effect that the truck was started forward within a second or two after the boy got in it, and that the train was about 2,000 feet to the north of the crossing at that time, is contradictory of his other testimony on that point; is clearly erroneous, and due to the confusion of the witness. Had the truck been started forward when the train was that distance from the crossing it would have been safely across the track and some distance from it when the locomotive reached that point.

A question presented on rehearing is as to whether these statements of the fireman on cross-examination, which are contradictory of his other testimony and of that of all other witnesses who testified on that point, were sufficient to take the case to the jury. We find they were not.

In weighing the testimony of a witness it must be considered as a whole, and a fragment thereof, inconsistent with his other testimony and manifestly given because of misunderstanding or confusion, will not support an inference which will take the case to the jury.

The rule applicable to motions for nonsuits applies to motions for directed verdicts.

"In each case, the party making the motion admits the truth of his adversary's evidence, and his adversary is entitled to the benefit of every inference favorable to him which may be drawn legitimately from any evidence before the court at the time the motion is made." (Manion v. Waybright, 59 Idaho 643,86 P.2d 181, 186.)

In Deichert v. Euerby, 54 Idaho 14, 20, 27 P.2d 981, 983, we said.

"In determining whether or not a nonsuit should be granted, the evidence must be considered as a whole, and the action of the court is not to be based on isolated portions of it."

In Connor v. Johnson, 132 Cal. App. 449, 22 P.2d 760,761, it is said:

"When the testimony, as a whole, is fairly considered, and not one small isolated portion of it alone considered, we think that but one conclusion can be reasonably drawn from it. We are equally satisfied that the whole of it must be considered in passing upon a motion for a nonsuit. . . . ."

See, also, Masten v. Griffing, 33 Cal. 111; Brown v.Chevrolet Motor Co., 39 Cal. App. 738, 179 P. 697; Nulsen v.Nulsen, 3 Cal.App. (2d) 407, 39 P.2d 509; Brosius v.Weber, 149 Mo. App. 181, 130 S.W. 134.

Appellants insist I. C. A., sec. 60-412, eliminates contributory negligence as a defense in actions for damages in railroad crossing cases if the railroad company has failed to conform to the requirements of that section, which provides:

"A bell of at least twenty pounds weight must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road or highway, and be kept ringing until it has crossed such street, road or highway; or an adequate steam, air, electric or other similar whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of $100.00 for every neglect, to be paid by the corporation operating the railroad, which may be recovered in an action prosecuted by the prosecuting attorney of the proper county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomotives, trains or cars, when the provisions of this section are not complied with."

That section is so nearly an exact copy of section 486 of the Civil Code of California as to lead to the conclusion that our legislature adopted the California provision. It was enacted in California in 1872 and in Idaho in 1887. Prior to the enactment in Idaho the section had been construed by the Supreme Court of California in Meeks v. Southern Pac. R. R. Co., 52 Cal. 602,604, wherein it is said:

"The 486th section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person and caused by the locomotive of the corporation, when a bell is not sounded or a whistle blown, as directed by that section, does not abrogate the doctrine of contributory negligence, or operate to give a right of action where the negligence of the plaintiff, if an adult, or if an infant, as here, the negligence of the parent or person standing in locoparentis, materially and proximately contributed to the injury."

It is the established rule in Idaho that where a provision has been adopted by our legislature from the statutes of another state, which had been construed by the courts of that state, it will be assumed that the construction which had been placed upon it was also adopted. (Mundell v. Swedlund, 58 Idaho 209, 223, 71 P.2d 434, 441, and cases therein cited on this point.)

Furthermore, this court had before it, in Wheeler v. OregonR. R. etc. Co., 16 Idaho 375, 393, 395, 102 P. 347, 353, 354, the contention now made by appellants, and disposed of it as follows:

"It will be seen from this section that the failure to ring a bell or blow a whistle, when approaching a street crossing or roadway, makes the company liable for damages sustained by any person and caused by a locomotive, train or cars. This statute does not rest the liability for damages upon the contingency that the injury sustained was the result of the failure to ring the bell or blow the whistle, but declares absolutely that where the bell is not rung or the whistle blown and damages are sustained, the company is liable. This section, no doubt, was enacted for the purpose of requiring a railroad company operating a train over a track, crossing a street or public highway, to give a signal of warning of the approach of such train, and to thereby notify persons intending to pass over the same of the approach of such train. It prescribes a penalty for a failure to comply with its provisions, and makes the company liable for all damages sustained. While this section provides that a railway is liable for all damages sustained by any person caused by a locomotive, train or cars, when a bell is not sounded or a whistle blown, still it does not abrogate the doctrine of contributory negligence or operate to give a right of action where the negligence of the plaintiff contributed to, and was the proximate cause of the injury. (Authorities cited). . . .

"It is true, however, that the authorities on this question are not uniform, but we believe that the better reason is with the proposition that the failure of the railroad company to comply with the statute is negligence per se, negligence in law. Under this statute the plaintiff makes his case by showing the negligence or noncompliance with the law, and the injury; but this statute does not, however, deny the right to the defendant to show that the plaintiff is not entitled to recover because of contributory negligence on the part of the plaintiff which was the proximate cause or one of the proximate causes of the injury. This rule recognizes the right of a defendant charged with negligence to defend upon the ground of nonliability by reason of contributory negligence on the part of the plaintiff."

That decision was rendered thirty years ago and has been followed in Idaho since it was written. The legislature has not seen fit to change the rule therein expressed, nor do we.

We adhere to the decision heretofore rendered herein.

Budge and Givens, JJ., concur.

Holden, J., dissents.

Ailshie, C.J., sat with the court at the rehearing but did not participate in the decision.