Baird v. Northern P. Ry. Co.
| Decision Date | 21 February 1918 |
| Docket Number | 14346. |
| Citation | 170 P. 1016,100 Wash. 384 |
| Court | Washington Supreme Court |
| Parties | BAIRD v. NORTHERN PAC. RY. CO. |
Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.
Action by Nora Belle Baird, administratrix, etc., against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.
C. H. Winders, of Seattle, for appellant.
Edmund Smith, L. V. Newcomb, and A. G. Worthington, all of Seattle for respondent.
A. W Baird, husband of plaintiff, Nora Belle Baird, had been foreman for six years upon a section of defendant's railroad on the east shore of Lake Washington. He was efficient, and had a thorough knowledge of the rules pertaining to his work. On the 26th day of January, 1916, he was killed in a collision between an extra freight train going south and his own gas car going north. The accident occurred to the south of the cut through which the track was laid on a curve. The point of the accident was about 32 rail lengths, or 960 feet, south of the grade crossing known as the Factoria crossing.
Defendant was charged with negligence in several particulars, all of which, save one, were not in any way sustained by testimony, and were withdrawn from the jury by the court without objection on the part of counsel for plaintiff. The only charge remaining, and upon which the verdict must be sustained, if at all, is that:
'Defendant negligently failed to sound any whistle or warning of the approach of said extra freight, and negligently ran said extra freight through a curve and cut on said railway track, at said high and dangerous rate of speed, and without sounding any whistle or warning as the said extra freight approached said cut and the gas car upon which the deceased was riding, thereby causing said extra freight train to suddenly come upon and collide with the gas car upon which the said deceased and his men were riding, without any notice of its approach, whereby the engine of the said extra freight train collided with the said deceased.'
The case went to the jury upon this theory. At the trial the storm center of the controversy was whether the engineer had sounded the whistle at a whistling post located 3,000 feet north of the Factoria crossing, and whether the statute making it a misdemeanor in one failing to sound a whistle at least 80 rods from a country road crossing would bring the case within the rule that a violation of a positive statute would make the defendant company negligent per se, and whether an employé of a railroad could claim the benefit of such a statute.
Defendant insisted that the statute was for the benefit of the traveling public only; to protect those who might be upon the highway, or near the crossing. The court adopted the theory of the plaintiff, and instructed that the failure to observe the requirements of the statute would be negligence per se, and that the statute was for the benefit of an employé track man as well as the general public. But it seems to us that these were not material things; and that we are not called upon to decide as to the application of the statute, or to construe it with reference to its scope and meaning.
The issue irrespective of the statute was whether defendant failed to give a warning signal before the train ran into the cut and in time to warn the deceased of his danger; in other words, whether it omitted a duty owing to the individual rather than its statutory duty to the general public, although he may have been benefited thereby, and which, if it had been performed, would have avoided the accident. This is the issue made by the pleadings.
These facts are indisputably shown by the testimony of plaintiff's witnesses. That deceased with his crew left Wilburton station, about 2 miles north of Factoria, in the morning and went south to help repair a bridge located about a mile south of Factoria. At the bridge another section crew was at work. After a short time deceased left the work to the other crew, leaving one of his own men to act as flagman. He then proceeded north with the remainder of his crew at a speed of 12 to 15 miles an hour. The engine of the gas car made considerable noise. Deceased had gone but a short distance when he stopped the car and 'spoke about a wrench that he had either left at the bridge or had a wrench belonging to the other gang or something like that.' There was a spur in the vicinity, and 'he usually stopped to listen and go on to the spur.' By adroit questioning counsel for plaintiff sought to make it appear that deceased had stopped for the purpose of listening for the train, but there is no testimony and no circumstance from which it can be inferred that he stopped for that reason. No witness testified that the listened, or that he had other concern than for the wrench.
It is a positive rule of the company, of which the deceased had notice, and knowledge of which he and other section men had to assert from time to time by way of written examination, his last examination being in the record, that section men and track workers must take account of their own safety and avoid passing trains, and that it is the duty of track men when approaching a cut to proceed cautiously, and, if necessary, flag their way. The rules are all contained in a book of rules upon which the deceased spent much time in faithful study. It is also clear that deceased had inquired of the agent at Wilburton and knew that two trains were to be expected, one a passenger and the extra freight. He knew that the freight was due to leave Wilburton at about the time he was at the bridge. He spoke of it to one of his section gang.
Deceased did not stop when near the cut, and the first notice those on the car had of the approaching freight train, which was on a down grade and probably coasting, was when it came around the curve in the cut, being then about 375 feet away from the gas car. The engine on the car was not shut down, although a witness says he put his foot on the brake.
It does not seem to be contended that deceased was not negligent to the last degree, not only in his...
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