Cox v. Polson Logging Co.
| Decision Date | 17 May 1943 |
| Docket Number | 28824. |
| Citation | 138 P.2d 169,18 Wn.2d 49 |
| Parties | COX v. POLSON LOGGING CO. |
| Court | Washington Supreme Court |
Action by Bessie M. Cox, administratrix of the estate of Otto Cox deceased, against the Polson Logging Company for the death of plaintiff's intestate as the result of a collision between an automobile in which he was riding and defendant's logging train. Judgment for plaintiff, and defendant appeals.
Reversed with direction.
Appeal from Superior Court, Grays Harbor County; W. M. Nevins, judge.
L. B. Donley, of Aberdeen, for appellant.
Hogan & Adams and Gladys Phillips, all of Aberdeen, for respondent.
In this action recovery is sought for the alleged wrongful death of plaintiff's deceased husband, Otto Cox, who was killed when an automobile in which he was riding as a guest ran into the side of a logging train owned by the defendant, Polson Logging Company, and operated by its employees. The cause was tried to a jury, which returned a verdict for the plaintiff, administratrix of the decedent's estate, in the sum of $19,411. Defendant's motion for judgment notwithstanding the verdict was denied and, after argument upon defendant's alternative motion for new trial, the court ruled that unless the plaintiff should consent to a reduction in the amount of the verdict to an amount them specified by the court the motion for new trial would be granted. Plaintiff consented to the reduction, and the court thereupon denied defendant's alternative motion. The court thereafter entered judgment for the plaintiff in the sum of $15,251, from which the defendant appealed.
A portion of U.S. Highway 101, state highway number 9, known as the Olympic Highway, connects the city of Hoquiam, Washington, with the town of Quinault, Washington. At a point approximately two and a half miles south of the intervening town of Neilton the highway is intersected by a railroad grade crossing maintained by the appellant, Polson Logging Company, and known as crossing number 5.
At this crossing, the highway extends in a northerly-southerly direction. The railroad track, extending in a northwesterly-southeasterly course, intersects the highway diagonally on a slight curve and, proceeding northerly from the intersection, runs more nearly in a westerly direction. For a distance of several hundred feet on each side of the railroad track the highway is straight and level, making no appreciable dip or rise on either side of the crossing. The highway in that area has a 20-foot oiled surface, with a 7-foot shoulder on each side.
The surrounding country is heavily timbered, which has been cleared for the roadway to an approximate width of 100 feet, or a distance of 33 feet beyond the edges of the shoulders. In the immediate vicinity of the crossing, north of the intersection and west of the highway, there is an area cleared of brush and some of the trees, so that one driving along the highway in a southerly direction would ordinarily have a view of several hundred feet of the railroad to the right, or west, of the highway. Beyond the north and south ends of the straight stretch of road which intersects the crossing, the highway curves in one direction or another, continuing through wooded areas.
At a point between 400 and 500 feet northerly from the crossing, beyond which the highway curves slightly to the west, there was a standard highway railroad crossing sign of the reflector type, consisting of a metal disc 30 inches in diameter, with two cross lines and the letters R. R. upon it. This sign was located on the outer edge of the westerly shoulder of the highway, 7 feet from the outer edge of the oiled portion of the road and 17 feet from the center stripe. At a point 34 feet north of the center of the railroad track at the intersection, and 24 feet west of the center line of the highway, there was also a standard black and white striped cross-arm, or 'cross-buck' sign, bearing the words 'Railroad Crossing.' This sign was likewise of the reflector type. When the headlights of approaching automobiles flashed upon the faces of the signs, the lettering upon them became luminous.
For a period of about two years immediately prior to the time of the accident, appellant's train crew had followed the custom, or practice, of throwing out a lighted flare upon the highway while the locomotive was in the act of crossing the road. The purpose of this was to warn travellers of the presence of the train upon the crossing. This precaution was not required of the appellant by any statute or departmental regulation, but was voluntarily assumed and exercised by the train crew regularly, except in those seasons and under weather conditions when there was a fire hazard in the wooded area. These flares consisted of handfuls of engine waste soaked in oil. The deceased, Otto Cox, and James A. Jensen, the owner and operator of the automobile in which the deceased was a passenger, were aware of this custom, for they had driven over the road at night on several occasions previously and had seen burning oil-soaked engine waste at the crossing.
On January 24, 1941, Jensen and Cox were engaged in falling timber near Sappho, Washington, which is located about 80 miles northerly from crossing number 5. At the end of the day's work they decided to drive to their respective homes in Hoquiam and Centralia for the week end. Jensen owned a 1935 automobile which was in good mechanical condition, with excellent brakes and two windshield swipes in operation. They left Sappho about 5 p.m., with Jensen driving and Cox seated next to him in the front seat, and thus they proceeded down the Olympic highway. They arrived in the vicinity of crossing number 5 at about 8 o'clock that evening.
It was an unusually stormy night. A strong wind was blowing and the rain was falling heavily, obscuring sound and rendering visibility poor. The automobile in which the two men were riding approached the crossing from the north at a speed of about 35 miles an hour. Appellant's train, consisting of a Baldwin locomotive, twenty-eight cars loaded with logs, and a caboose, approached the crossing from the west on a slight down grade, at a speed of about 12 miles an hour. Twenty-four of the twenty-eight loaded cars were of the 'skeleton' type, and the other four were disconnected trucks. The entire train was about 1300 feet in length. The loads of logs reached to within 40 to 48 inches of the ground and extended upward as high as 16 feet.
The automobile collided with the twenty-second car back of the locomotive, and as a result the machine was wrecked, Cox was killed, and Jensen was severely injured.
The only witnesses who testified directly concerning the collision were james A. Jensen, the driver of the automobile, and Thomas G. Shortreed, appellant's rear brakeman who, at the time of the accident, was riding in the caboose. Jensen's testimony upon the subject was in substance as follows:
He had a general knowledge of the railroad crossing and its location, but was not aware that he was in the immediate vicinity thereof until a moment Before the collision. As he proceeded along the highway on the night in question, he did not see either of the railroad crossing signs. His explanation for this was, first, that the signs were so situated that his headlights did not strike upon nor illuminate them, and, second, that the heavy rain by its reflections produced a glistening effect upon the roadway, seriously interfering with the vision of one driving or occupying an automobile. He heard no sound of whistle or bell at any time. Having knowledge of the custom followed by the train crew of throwing out lighted flares upon the highway as the locomotive passed over the crossing, he relied fully upon such a warning being given in the event the train should come by at that time of the evening. Seeing to flare ahead of him, he proceeded forward at a sustained speed of about 35 miles an hour. We quote a portion of his testimony: (Italics ours.)
His explanation of his failure to see the train sooner than he did is contained in the following testimony given by him on his direct examination.
On cross-examination he further described the crossing as being an unusually dangerous one under certain conditions of weather:
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