Golay v. Northern P. Ry. Co.

• Decision Date: 09 January 1919
• Docket Number: 14964.
• Citation: 177 P. 804,105 Wash. 132
• Parties: GOLAY v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

177 P. 804

105 Wash. 132

GOLAY v. NORTHERN PAC. RY. CO.

No. 14964.

Supreme Court of Washington

January 9, 1919

Department 1.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by R. F. Golay against the Northern Pacific Railway Company a corporation. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Main C.J., and Mitchell, J., dissenting.

Geo. T Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for appellant.

Govnor Teats, Leo Teats, and Ralph Teats, all of Tacoma, for respondent.

MACKINTOSH J.

For three weeks prior to the incident which gave rise to this action, the respondent had been operating a garage in the town of Roy, situated about 100 feet west of the track of the appellant company, and nearly opposite the only railroad crossing in the town. Between the main track and the respondent's place of business there was a side track on which it was customary for freight trains to stand awaiting the passing of the appellant's south-bound passenger train, which was due to arrive in Roy at about 10:20 a. m. The respondent had been busy on the morning of March 27, 1917, about his garage and had heard a freight train switching, but did not know whether the passenger train had arrived, although he was familiar with that train's schedule, and with the fact that freight trains took the siding for the purpose already referred to. The respondent backed out of the garage in an automobile, in which he was about to take a passenger to some place in the country, and as the machine reached the street and was being turned around, respondent says he listened for the passenger train, but did not hear it. The testimony of several witnesses is that the train had been ringing its bell for a considerable distance and had blown the whistle for the crossing, but, in view of the fact that the respondent and some of his witnesses testified that they heard no bell or whistle, we assume, for the purposes of this action that no bell was rung nor whistle blown. He then proceeded from the garage to the crossing with his machine in low gear, going at the rate of 4 miles per hour. As he approached the crossing the freight train standing on the side track obstructed his view of the main track, because of the fact that the rear car of the freight train was situated some 50 to 75 feet beyond the crossing. He made no effort to look for an approaching train, however, until the front wheels of his automobile were upon the first rail of the main track, although before that time the rear freight car had ceased to be an entire obstruction to a view of the main track for some distance. When he did look he saw the on-coming passenger train within a short distance, and attempted to cross the track ahead of it, but was unsuccessful, and for the damages which occurred to his person and to his automobile he brought this action, which resulted in a verdict in his favor in the trial court. While the respondent was some distance from the railroad tracks witnesses who were in close proximity to his machine at the time and who were in no more advantageous position, so far as observing the approach of a train was concerned, than was the respondent, heard and saw the train approaching by observing the smokestack above the freight cars, and called to the respondent, recognizing the perilous position in which he was about to place himself, and warned him of the approach of the train, but these warnings were not heard by him, and he proceeded as we have indicated. The train was being operated at a speed greatly in excess of the speed provided for in the ordinance of the town of Roy when it struck the respondent.

Under these facts the appellant asserts that the respondent was guilty of contributory negligence as a matter of law, while the respondent contends that a question of fact for the jury was presented, and that the respondent was entitled to the benefit of that rule of law which provides that a person, in approaching a railroad track, has a right to assume that the railroad company will not operate its trains in excess of the limits prescribed in statute or ordinance.

In determining the question presented in this case, we have to take into consideration two lines of authority, each of which is represented by several cases decided by this court. The first line establishes the doctrine that a pedestrian or driver of any vehicle cannot recover for injuries occasioned by a car or train when the evidence discloses that he approached the track where he could have, had he looked in that direction, observed an approaching car or train, but did not look and proceeded into the zone of danger without taking any reasonable precaution to avoid the collision, and that he would be guilty of contributory negligence, as a matter of law, notwithstanding the negligence on the part of the railroad company in operating trains at an unlawful rate. This line of...