Lutz v. Schendel

WARNE, J. pro tem.

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This is an appeal from a judgment entered upon a jury verdict which found against the appellant Rosemarie Lutz, but which awarded appellant Loretta Lutz $1,000 in a personal injury action.

The action arose out of a collision which occurred on May 19, 1952, when a pickup truck owned by the respondent Henry C. Schendel, and driven by his son, the respondent Richard H. Schendel, collided with an automobile' driven by the appellant Rosemarie Lutz who had with her as a passenger her sister, the appellant Loretta Lutz.

The parties to this litigation were the only witnesses who gave any testimony concerning the accident and their evidence is very conflicting. It appears, however, that the accident occurred between 5 and 6 p. m. It was daylight at the time and the weather was clear and the highway dry. The accident occurred at a railroad crossing. Appellants testified that as they approached the crossing, they observed a train flashing signal in operation; that there were no cars between them and the railroad crossing; that upon reaching the intersection, Rosemarie stopped her car, put on the brakes and turned off the ignition, that the train at that time had not come into view,

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but as it passed the intersection, their car was struck in the rear. Appellants got out of the car after the impact and spoke to the driver of the pickup truck which had collided with their car. Appellants testified that respondent Richard H. Schendel told them, “I couldn’t stop, I couldn’t stop.” This was not denied by said respondent. After the collision appellants observed that approximately eight feet separated appellants’ car from respondents’ truck.

The respondent Richard H. Schendel, however, testified that he pulled up five or six feet behind the Lutz ear and stopped, at which time there was a line of from six to eight cars waiting for the train to pass, and that the train was completely blocking the tracks at the time and moving to the west. He further testified that when the train cleared, the whole line of traffic started out, including the Lutz car. He likewise commenced to move forward with this line of traffic, and all of the cars in front went on across the tracks; but the Lutz ear, after traveling within 10 feet of the nearest track, came to a sudden stop without a hand signal and he was unable to stop in time.