Beckwith v. Spokane International Ry. Co.

• Citation: 120 Wash. 91,206 P. 921
• Decision Date: 10 May 1922
• Docket Number: 16773.
• Court: United States State Supreme Court of Washington
• Parties: BECKWITH v. SPOKANE INTERNATIONAL RY. CO.

206 P. 921

120 Wash. 91

BECKWITH v. SPOKANE INTERNATIONAL RY. CO.

No. 16773.

Supreme Court of Washington

May 10, 1922

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by Alfred J. Beckwith against the Spokane International Railway Company. Verdict and judgment for the plaintiff, and defendant's motion for judgment notwithstanding the verdict or for new trial having been denied, the defendant appeals. Reversed.

Allen Winston & Allen, of Spokane, for appellant.

F. A McMaster, of Spokane, for respondent.

HOLCOMB J.

The accident out of which this cause arose occurred in Spokane, at about 5 o'clock p. m. on September 3, 1920, on the crossing of Greene street at grade over the tracks of appellant. The facts, which were resolved in favor of respondent, are substantially as follows:

Respondent was employed at a plant located about three blocks east and three blocks south of the crossing of Greene street where the accident occurred. He was driving a Ford automobile, with the top up, and had a companion with him in the front seat. The tracks of the Inland Interurban Railway, and those of appellant parallel each other for some distance east and west of the crossing; there being five tracks of the interurban railway running east and west, and about 45 feet distant from the northern track the first or main track of appellant is reached, and then two side tracks north of the main track. On the first side track just north of the main track of appellant stood a train of 20 or 25 box cars. The west end of this string of cars was 25 or 30 feet from the crossing. The traveled way of the crossing was of plank, about 14 feet wide. A switch engine pulling two cars was running west towards this crossing on the first track north of the side track containing the box cars, and as respondent was traveling north these cars, he asserts, hid from his view the engine and cars. When respondent was within 3 or 4 feet of the nearest rail of the track on which the engine was running, be heard a bell, and looking up saw the engine about 15 feet from him. He thought he could not stop his car in time to avoid being hit, but by accelerating his engine he thought he could get over the track, and attempted to do so, but the engine hit the rear end of his automobile, and dragged it about 60 feet. He approached the track on which he was struck at the rate of 8 or 10 miles an hour. The switch engine was running at the rate of 10 to 15 miles an hour. Respondent testified that as he approached the Inland tracks, he looked and listened for approaching trains, and again when approaching appellant's tracks, about forty feet away, and again when crossing the main line, and the track on which the box cars were standing, and that he did not see or hear the approach of any train or the sound of any bell or alarm of any kind, and that the first thing he heard was the bell when he looked up and saw the engine 15 feet away. His companion testified to practically the same thing, except that he stated that in his judgment the automobile was about 3 feet from the track.

Approaching the Inland tracks from the south about 300 feet south of the south line of their tracks, there is a slight rise of the ground, which makes the ground about 20 feet higher than the level of the crossing. From this high ground respondent had a good view of the tracks on each side of the crossing, as there was nothing to obstruct his view. Respondent was driving his car between neutral and high, which caused it to make some noise. The brakes on his car were in good condition. The road was dry and he could stop his car in about 4 or 5 feet. If he knew he had to stop his car at a certain point, he could stop it in about 5 feet. Respondent had lived in the neighborhood of the crossing for some time and had passed over the tracks at the same times almost daily. He knew there was switching going on every evening at the time of the accident. There was nothing to interfere with his seeing anything on any of the tracks for a half mile west of the crossing, nor to the east for the same distance, except the box cars, which stood on the second siding. He had before this time heard trains when they were switching. Respondent identified certain pictures taken at the crossing about four or five months after the accident, and stated that the engine shown in the pictures is of substantially the same type, and the box cars substantially the same character as those he saw at the time of the accident. He, however, places the box cars in the picture at about twice as far east of the crossing as they were on the day of the accident.

The pictures in evidence show that, when the engine was either standing still or moving behind the box cars, either the smoke from the engine or the steam from the exhaust was visible, and could be seen by one approaching the crossing. Appellant unsuccessfully moved for a directed verdict, for judgment n. o. v., and for a new trial. The case was submitted to the jury, and its verdict sustained, on the testimony that no bell was rung.

No questions are urged on this appeal as to the correctness of the court's instructions, or as to the reception of evidence. The only question presented is whether the respondent was guilty of contributory negligence. Appellant contends that respondent did not look where he should have looked, and did not listen where he should have listened, and that the physical facts are against him, and cannot be contradicted.

Ordinarily, it is true, the contributory negligence of a plaintiff is a jury question, and we have often held that the question of contributory negligence would not be taken from the jury and decided as a matter of law, unless the omission or commission of the acts shown were so palpably negligent that the minds of reasonable men ought not to differ concerning them.

There is no question in this case of the speed of the engine, or of the engine silently coasting. Appellant therefore contends that the case falls within the rule of our decisions in Mouso v. Bellingham, etc., Railway Co., 106 Wash 299, 179 P. 848; McEvilla v....