161 F.2d 968 (1947)
INTERSTATE MOTOR LINES, Inc
v.
GREAT WESTERN RY. CO.
No. 3423.
Circuit Court of Appeals, Tenth Circuit.
May 19, 1947.
161 F.2d 968 (1947)
INTERSTATE MOTOR LINES, Inc v. GREAT WESTERN RY. CO.
No. 3423.
Circuit Court of Appeals, Tenth Circuit.
May 19, 1947.
161 F.2d969
Kenneth M. Wormwood, of Denver, Colo. (William T. Wolvington, of Denver, Colo on the brief), for appellant.
Kenneth W. Robinson, of Denver, Colo. (Caldwell Martin and M. B. Holt, Jr both of Denver, Colo on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
The railroad track of the Great Western Railway Company and North Washington Highway cross at a point about three miles east of Loveland, Colorado, called Bird's Crossing. A train belonging to the railway company and a truck owned by Interstate Motor Lines, Inc collided at the crossing. The train consisted of the engine, twelve freight cars, and the caboose. The truck consisted of a diesel motor and tandem trailer, and it was loaded with approximately 30, 000 pounds of chilled meat. The railway company instituted this action against the motor company to recover damages. It was alleged in conventional language that the negligence of the motor company was the proximate cause of the collision. The motor company denied negligence on its part, and by cross complaint sought to recover damages alleging that the negligence of the railway company was the efficient cause of the accident. The case was tried to a jury, verdict was returned for the railway company, judgment was entered accordingly, and the motor company appealed.
Error is assigned upon the refusal of the trial court to direct a verdict for the motor company. The argument is that there was no evidence establishing negligence on the part of the motor company; but that assuming the evidence did show negligence on its part, the railway company was guilty of contributory negligence as a matter of law and therefore was not entitled to recover. It is the law in Colorado that negligence on the part of the defendant will not authorize recovery of damages where the plaintiff was also guilty of contributory negligence which was one of the proximate causes of the injury. Headley v. Denver & R. G. R. Co 60 Colo. 500, 154 P. 731; People v. Schaeffer, 100 Colo. 70, 65 P.2d 699. It would not serve any useful purpose to review in detail the evidence bearing upon the question of negligence and contributory negligence. It is enough to say in this connection that we think the evidence in its totality presented an issue of fact as to each question and that therefore the court providently denied the motion for a directed verdict.
Complaint is made that the court admitted in evidence two regulations promulgated by the Interstate Commerce Commission under the Motor Carrier Act of 1935, as amended, 49 U.S.C. A. 301 et seq. One of the regulations provides in effect that the speed of a motor vehicle operated in interstate commerce for hire shall upon
161 F.2d970
Under the law of Colorado, the failure of a truck engaged in commercial operation on the highway to comply with a governing statute or municipal ordinance reasonably intended to protect and safeguard the public constitutes negligence, and damages may be recovered if the negligence was the efficient cause of injury. Denver & R. G. R. Co. v. Ryan, 17 Colo. 98, 28 P. 79; Denver, T. & G. R. Co. v. Robbins, 2 Colo. App. 313, 30 P. 261; Denver Omnibus & Cab Co. v. Mills, 21 Colo. App. 582, 122 P. 798; Phillips v. Denver City Tramway Co 53 Colo. 458, 128 P. 460, Ann. Cas. 1914B, 29; Hedges v. Mitchell, 69 Colo. 285, 194 P. 620; Crosby v. Canino, 84 Colo. 225, 268 P. 1021; Colorado & S. R. Co. v. Honaker, 92 Colo. 239, 19 P.2d 759. Where damages are sought for injury proximately caused by the negligent operation of a train, truck, or taxicab in violation of a controlling municipal ordinance, the ordinance is admissible in evidence. Hedges v. Mitchell, supra. And we think that by fair analogy in a case of this kind where the operation of a truck engaged in interstate commerce for hire in violation of the regulations of the commission promulgated under authority of the Act is relied upon as constituting an element of negligence, the regulations are admissible in evidence.
The action of the court in rejecting certain tendered evidence is challenged. The fireman on the engine involved in the accident was called as a witness for the railway company. On cross examination, he testified that the crossing was a dangerous one; and later in the course of cross examination, he testified that it was a bad crossing. That testimony was admitted without objection and remained before the jury. The motor company sought on further cross examination to prove by the witness that on previous occasions he had a number of close calls at the crossing; that on one or two previous occasions he had known of women going in the ditch to avoid hitting the train; that on previous occasions he had told the engineer to stop in order to avoid a collision; that he had known of the engineer applying the air-brakes and stopping to avoid a collision; that he did not know why an underpass had not been provided there; and that it was the worst crossing in the world. In rejecting the tendered testimony, the court expressed the view that the testimony was opinion evidence; but the court stated in connection with the ruling that the motor company might interrogate the witness with respect to the physical conditions at the crossing as indicating that it was a dangerous
161 F.2d971
The giving of two instructions is assigned for error. One was in substance that even though the railway company was negligent, yet if the driver of the truck could have discovered the locomotive at a time when he could avoid the collision, although the train could not do so, the motor company was liable for all damages flowing from the collision. The other was in substance that it was the law in Colorado that a traveler approaching a public highway in the country was charged with the duty of knowing that others may be negligent and that he must act accordingly. No objection or exception was taken to either of these instructions, and therefore the criticisms now directed against them are not open to review. Lindsay v. Burgess, 156 U.S. 208, 15 S. Ct. 355, 139 L. Ed. 399; Order of United Commercial Travelers v. Greer, 10 Cir 43 F.2d 499; Kitrell v. United States, 10 Cir 79 F.2d 259 certiorari denied, 296 U.S. 643, 56 S. Ct. 248, 80 L. Ed. 457; Scritchfield v. Kennedy, 10 Cir 103 F.2d 467; Forakis v. United States, 10 Cir 137 F.2d 581.
The remaining contention advanced by the motor company is that the court erred in refusing to submit to the jury
161 F.2d972
Here, the railroad track and the highway cross substantially at right angles. The railroad runs east and west, while the highway runs north and south. In approaching the crossing from the east, a train passes through some cuts; and from the time a train enters a cut about a quarter of a mile east from the crossing it is impossible for one on the engine to see anything on the highway until the train reaches a point very near to the crossing. Approaching the crossing from the south, there is a rise of approximately five per cent in the highway. Specifically, the rise in elevation is 48 feet in the last 950 feet of the highway. The terrain immediately to the right of the highway as one approaches from the south is elevated substantially above the highway itself. And in addition a residence, a barn, two box cars demounted and used by a farmer for storage purposes, and an elevator are located east of the highway and obstruct in part a view of the track as a traveler approaches the crossing from the south. The accident occurred shortly after dark. The driver of the truck testified that he looked both to the right and the left as he approached the crossing and did not see any headlight of a train; and that he did not know what had happened until he was told about the collision. Others testified that the headlight was burning and that they saw it. When all of the facts and circumstances are considered together, and each is accorded the weight to which it is appropriately entitled, men of reasonable minds might differ as to whether the exercise of ordinary care and prudence required the railway company to install and maintain some special warning signal. It therefore was a question for the jury to determine whether the failure to install and maintain such a signal constituted negligence, and that question should have been submitted to the jury under appropriate instructions of the court.
The judgment is reversed and the cause remanded.
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