The decisive question on this appeal is whether or not the evidence which is without substantial conflict, shows, on the part of the plaintiff, contributory negligence as a matter of law, particularly in view of testimony to the the effect that the automatic electric crossing signal bell was not ringing at the time. The prevailing opinion states fully the general principles of law, to which I give full concurrence, with respect to the care and vigilance required of one aproaching and driving over a railroad crossing. Applying these general principles to the facts, the conclusion seems irresistible that plaintiff was guilty of contributory negligence as matter of law.
The accident happened between 7:30 and 8 o'clock in the morning. It was full daylight with clear atmospheric conditions. As soon as plaintiff passed the freight cars, he says he looked first to the south and then to the north but saw the track only for a distance of 150 feet to the north and did not see the train. After plaintiff had passed the box cars standing on freight tracks Nos. 1 and 2, he had a clear view to the north for a distance of at least 900 feet along the south-bound main line track. He estimated a distance of 27 feet between the west rail of No. 1 freight track and *Page 464 the east rail of the south-bound main line track. This gave him at least 25 feet within which he could have looked to the north, discovered the on-coming train, and brought his truck to a complete stop in time to have avoided the collision; that is if he had looked to the north with such attentiveness as to see what was plainly within the range of his vision. At the speed at which he was driving he said he could stop within from 3 to 6 feet. Later he said automotive engineers fixed this distance at from 6 to 12 feet. In either event there was sufficient distance within which he could have brought his truck to a stop had he seen the train at the time he says he looked. It will be seen that in driving his truck at the rate of five miles per hour, his lowest estimate, plaintiff would travel 7.3 feet per second, so that he would cover the distance of 25 feet in approximately 3 1/2 seconds. The train, if traveling at the rate of sixty miles per hour, the highest estimate, would move 88 feet per second, and in 3 1/2 seconds would travel 308 feet. At the time plaintiff passed the string of freight cars and could have commanded a clear view of at least 900 feet of the main line track extending to the north, the train must have been not more than approximately 308 feet distant from the crossing. Any computation using a lower rate of speed for the train and a higher rate of speed for the truck would place the train closer to the intersection at the time plaintiff says he looked to the north. Reasonable or due care requires that in looking the plaintiff should have brought within his range of vision more of the main line track than merely 150 feet. He could have seen that far without turning his head or his body. His excuse is that to have looked farther to the north would have required him to turn his body. He cannot free himself from negligence merely because he did not care to turn his head or his body in the direction from which a train might be expected, when as a matter of fact the train was then about 300 feet away approaching the crossing at a high rate of speed and within plain view if he had taken the trouble to look. His companion sitting in the seat with him saw the train and shouted, "My *Page 465 God, the train." A very significant piece of testimony is that of Hagburg, who was riding in the box of the truck. He testified that when Bergstrom shouted the rear part of the truck "was just pulling off the rails of the last track that had freight cars on it, that is on the main line — one of the main lines. We were pulling on to the first one of the main lines." This was approximately the point where plaintiff said he looked and saw nothing. Hagburg's estimate of location is confirmed by the fact that immediately after Bergstrom shouted, Hagburg called to his stepson to jump, and then placed his hands on the side of the car, vaulted over the side, and landed clear of the first rail of the north-bound main line. When he rose up the freight cars were directly in front of him. He landed between freight track No. 1 and the northbound main line track, or approximately 25 feet from the south-bound main line track. The inference is rather convincing that if plaintiff had been driving at such a rate of speed that he could have stopped from within 6 to 12 feet he could, after Bergstrom's warning, have stopped his truck before colliding with the locomotive. A careful reading of the evidence leads me to the conclusion that plaintiff drove his truck in front of the on-coming train while entirely heedless and indifferent to his own safety and the safety of others. If he looked at all to the north, he did it in such an indifferent and inadequate manner as not to see the train which was plainly within the range of vision. His conduct was nothing short of gross negligence. There is no showing made by him that he was suffering from a stiff neck or any other infirmity which made it difficult or impossible for him to turn his head or even his body so as to see what was plainly within view. It is common knowledge that in crossing railroad tracks at such an angle as here one need not turn his head far to command a view of the entire 900 feet of main line track upon which the on-coming train was traveling. It will not do for the plaintiff to say that he did not look farther to the north because he would have had to turn his body. Plaintiff attempts to excuse his *Page 466 conduct by saying that the road was full of ruts. If this were true, it would not excuse such rash conduct as to drive in front of an on-coming train without taking the trouble to look farther up the track than 150 feet. A number of photographs produced by defendant were introduced in evidence, without objection, after plaintiff's witnesses had testified they fairly disclosed the conditions at the crossing at the time of the accident. These photographs, which were taken on the morning of the accident, show a relatively even roadway, such a one as could be easily and safely traversed by automobiles. The law applicable is well stated in Butler v. Payne, 59 Utah 383, 203 P. 869, 870, wherein the court said:
"One or two of plaintiff's witnesses testified to the effect that one would have to be within a very few feet of the crossing before he could see along the track in a northerly direction or see a train approaching. Admitting this to be true, which is impossible if the photographs referred to reflect the actual conditions, it was the duty of the deceased, in the exercise of ordinary care, to look for an approaching train the first opportunity he had before attempting to cross the track. As suggested by the trial court, in passing upon the motion for a nonsuit, a person traveling in an automobile can without danger approach much closer to a railroad track than one driving a vehicle drawn by horses.
"We have examined the evidence with scrupulous care, and have reached the conclusion that if deceased had exercised ordinary care in looking for an approaching train he would have seen the train with which he colided in time to avoid the accident. This being the case, it becomes entirely immaterial whether or not he could have heard the train, or whether or not the defendant's servants or agents were negligent in its operation."
And in Lawrence v. Denver R.G. Ry., 52 Utah 414,174 P. 817, 820, as follows:
"A person before attempting to cross a railroad track, and when an approaching train is in full view, is chargeable with seeing what he could have seen if he had looked, and with hearing what he would have heard if he had listened. In otherwords, where he apparently looks and listens, but does not see or hear the approaching train, it will be presumed that he did not look or listen at all, or, if he did, that he did not heed what he saw or heard." *Page 467
To similar effect is the recent case of Polly v. OregonS.L.R. Co. (Idaho) 6 P.2d 478, 480, wherein it is said:
"Where a person approaching a railway crossing does not look when he is in a place where he can see if he looks, or looks but does not see, and nothing diverts his attention, he is guilty of contributory negligence."
Plaintiff's disinclination to turn his body in order to look is no adequate excuse. The Supreme Court of Kansas, in Reader v. Atchison, T. S.F. Ry. Co., 112 Kan. 402, 210 P. 1112,1113, said:
"The fact that the plaintiff would have been obliged to turn in his seat and look backward is of no consequence. A traveler approaching a railway crossing must be vigilant in trying to see."
The theory of the prevailing opinion, however, is that notwithstanding plaintiff's negligence, if any is disclosed by the evidence, the issue of contributory negligence must be submitted to the jury because of testimony to the effect that the mechanical automatic crossing bell was not working and by its silence it gave plaintiff an implied invitation to cross. It is there said that the failure of the signaling device to operate and warn of the approach of the train does not entirely relieve the traveler of his duty to look and listen for an approaching train, yet, nevertheless, the traveler may rely to a certain extent on the safety implied from the silence of the signal, and that such silence of the signal is a circumstance to be taken into consideration by the jury on the issue of contributory negligence. The question of the extent to which a traveler may rely on the indication of safety, which the silence of a signaling device at a railroad crossing implies is presented now for the first time in this court. The decided cases are not in full accord on the subject. In the prevailing opinion the two rules set forth in 53 A.L.R. 973 under the heading "Failure of signaling device at crossing to operate as affecting liability of railroad for injury" are referred to at length and the opinion follows *Page 468 the rule said to be supported by the longer line of cases. I prefer that we adopt the other rule, that a traveler has no right to rely solely on the silence of the signal and is as a matter of law guilty of contributory negligence in proceeding to cross the track without taking further precautions for his own safety. I am unwilling to say that a railroad by putting in automatic signaling devices at street crossings increases its responsibility and liability to the extent implied by the other rule or that the silence of such a bell is an implied invitation to the traveler to cross railroad tracks without taking the ordinary precautions and exercising ordinary care which includes the requirement that he shall look and listen. The object of putting in electric bells is to promote safety rather than to increase railroad liability. Jacobs v. Atchison, T. S.F. Ry.Co., 97 Kan. 247, 154 P. 1023, L.R.A. 1916D, 783, Ann. Cas. 1918D, 384; Gunby v. Colorado S.R. Co., 77 Colo. 225,235 P. 566. In Atchison, T. S.F. Ry. Co. v. McNulty, decided by the Circuit Court of Appeals (8th Cir.) 285 F. 97, 100, affirmed in the Supreme Court of the United States by denial of certiorari, 262 U.S. 746, 43 S. Ct. 521, 67 L. Ed. 1212, the court said:
"Neither open gates nor failure of the railway company to give signals at a railway crossing relieves one about to cross the tracks from the duty to use due care to look and listen for an approaching train."
See other cases in note, 53 A.L.R. 976.
Any substantial relaxation from the imperative requirement on travelers to look and listen, in the exercise of ordinary care, at railroad crossings where there are automatic signaling devices, will tend, I fear, to increase rather than to decrease the number of automobile accidents. The evidence in the present case indicates not so much that the electrical device was out of order or not operating as that the plaintiff and his witnesses did not hear the bell. True, plaintiff and his witnesses said it was not ringing. Hagburg, *Page 469 however, said that upon hearing Bergstrom shout he then heard the locomotive whistle or the crossing bell. Later he said he was not sure whether the bell he heard was the crossing bell or the locomotive bell. There is no evidence that the automatic device was out of order or that defendant negligently or carelessly permitted it to be or remain out of repair. The case at best rests on testimony of a mere momentary failure of operation.
The decision in Crowley v. Chicago, B. Q.R.R. Co.,204 Iowa 1385, 213 N.W. 403, 407, 53 A.L.R. 964, cited and relied on in the prevailing opinion, does not go quite so far as I think the prevailing opinion does in this case, for there it was said with reference to the silence of a mechaical signaling device:
"Nor are we prepared to say that its presence must of necessity make the question of his contributory negligence in all cases one for the jury. If the silence of such a device is to be given any effect in determining the question of contributory negligence, it is apparent its tendency would be to present a jury question. But, as we have frequently observed, whether contributory negligence is a question of law for the court or of fact for the jury must be determined on the facts of the particular case."
If it be conceded that the presence of a mechanical crossing signal permits the traveler to relax to some extent the degree of vigilance he would otherwise be required to exercise, that does not mean that he may cast aside all caution and care and proceed in the face of obvious impending danger which by the exercise of even slight care he could have avoided. The undisputed facts here show, I think conclusively, that had plaintiff exercised even the slightest degree of care for his own safety the accident could have been avoided.
If there is any discretion whatsoever left in the court to determine the question of contributory negligence, in the face of testimony that the automatic signaling device was not ringing, then I think under the facts disclosed by the *Page 470 evidence the trial court was right in withholding this case from the jury.