Goodner v. Chicago, M., St. P. & P. R. Co.

Decision Date13 December 1962
Docket NumberNos. 36301,36386,s. 36301
Citation61 Wn.2d 12,377 P.2d 231
CourtWashington Supreme Court
PartiesSusie M. GOODNER, as Guardian ad Litem for Harold Lester Littleton, a minor, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, Appellant, The County of Spokane, Leo Payne and Beatrice Payne, husband and wife, Defendants. Susie M. GOODNER, as Administratrix of the Estate of Virginia R. Littleton, Deceased, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, and the County of Spokane, Appellants, Leo Payne and Beatrice Payne, husband and wife, Defendants.

John D. MacGillivray, Willard W. Jones, John J. Lally, Richard F. Wrenn, and Donald N. Olson, Spokane, Richard L. Gemson, Seattle, for appellant.

Hamblen, Gilbert & Brooke, Edmund Lozier, Richter, Rodgers & Wimberley, Spokane, for respondent.

ROSELLINI, Judge.

This action was brought to recover damages for the alleged wrongful death of Virginia Littleton and injuries to her minor son, which occurred when the automobile in which they were guests was struck by a train at a crossing in Opportunity, Washington, an unincorporated town. The driver of the automobile, the owner of the train, and Spokane County, which owned the road on which the automobile was traveling, were named as defendants.

After the trial, the court instructed the jury that the driver of the automobile was negligent, as a matter of law, but could not be held liable unless the jury found that she was guilty of gross negligence, inasmuch as the host-guest statute (RCW 46.08.080) applied. The jury exonerated the driver of the automobile, but rendered verdicts in favor of the plaintiff and against each of the other defendants, who now appeal.

We will treat first the questions raised by the defendant railroad, which will be referred to hereafter as the Milwaukee. It is its major contention that there was no evidence to support the finding that its employees were guilty of negligence which proximately caused the accident.

The evidence was that the defendant driver, at the request of the deceased, picked her and her young son up at a church located about three blocks north of the railroad crossing on Union Road, at approximately 3:30 p. m. on November 8, 1960. It was a clear day, and the sun was shining. The automobile approached the crossing as the train was approaching from the west, traveling at a rate of speed of from 15 to 20 miles per hour. The driver of the automobile did not see or hear the train and drove onto the track, where the automobile was struck broadside by the train and was pushed down the track a distance of about two hundred feet before the train came to a stop.

The following physical facts pertaining to the grade crossing were established: Union Road is a paved county road 20 feet in width, running north and south, which intersects at right angles the Milwaukee's main line track running east and west. The approach to the crossing from the north, the direction from which the automobile was proceeding, is moderately ascending. Prior to crossing the main line track, Union Road crosses a side track or spur running some 19 feet to the north and parallel to the main line track. The crossing is designated by standard cross-buck signs on either side of the tracks.

Situated off the Milwaukee's 100-foot right of way 52 feet west of the west edge of Union Road, is a vacant warehouse some 340 feet in length paralleling the spur track. The warehouse had been at the site possibly forty to fifty years. North of the railroad tracks and partially on the county road, is a heavy growth of foliage. Both the foliage and the warehouse obstructed the view of motorists headed south on Union Road. However, beginning at a distance of about 35 feet north of the main-line track, or approximately a car length north of the spurtrack, an approaching motorist would have an unobstructed view to the west, the direction from which the train was coming.

Both the deceased and the driver of the automobile were familiar with the crossing, having driven over it several times a week for a number of years.

The engineer testified that as the train, consisting of a diesel engine and caboose, approached the crossing, the bell was ringing and he gave the crossing whistle prescribed by company regulations. His evidence in this regard was confirmed by members of the crew. In addition, two ladies who were inside a house located about a half block from the crossing, testified that they heard the whistle. On the other hand, another witness, who was working on a car in the back yard of his mother's house, located southwest of the crossing, testified he heard the train whistle when it was an estimated distance of several hundred feet from him, but stated he was watching the train and that no whistle was blown after the train passed the west corner of the vacant warehouse, which was 392 feet from the crossing; and another witness, who was inside his repair garage east of the crossing, testified that he did not hear the whistle or bell, but admitted that he could not say positively whether the whistle was sounded. Another witness, who lived southeast of the crossing and was at her chicken house nearby, stated that she did not hear the train whistle but did hear a bell clanging before the collision.

The sides of the diesel engine were painted a bright orange and the headlight was burning. The defendant driver admitted that had she seen the train, she could have stopped her automobile, which was traveling at a speed of about 12 miles per hour, in time to avoid the collision.

The fireman testified that, as the train approached the crossing, he saw the automobile just as it went onto the track. He called out to the engineer, who immediately took his hand off the whistle cord and applied the emergency brake. This brake was so designed that it achieved its full braking power in about seven seconds. This was the reason that the automobile was pushed down the track some distance before the train came to a stop. The Milwaukee contends that there was insufficient evidence to support a jury finding that it failed to give adequate warning of its approach, first because it was conclusively shown that the bell was sounded, and this is all that is required by statute, and second, because the evidence that its employees failed to sound the whistle was not probative.

RCW 81.48.010 provides:

'Every engineer driving a locomotive on any railway who shall fail to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing of such bell or sounding of such whistle until such locomotive shall have crossed such road or street, shall be guilty of a misdemeanor.'

The Milwaukee maintains that the statute sets the limits of its obligation, and that compliance with the statute renders it free of negligence. It cites White v. Arizona Eastern R. Co., 30 Ariz. 151, 245 P. 270; New Orleans & N. E. R. Co. v. Hegwood, 155 Miss. 104, 124 So. 66; Director General of Railroads v. Pence's Adm'x, 135 Va. 329, 116 S.E. 351, and Hoelzel v. Chicago, R. I. & P. R. Co., 337 Mo. 61, 85 S.W.2d 126, all of which tend to support this view of the law.

However, there are many other courts which take the view that a statute prescribing penalties for failure to give certain signals or warnings set only the minimum standard of conduct; and it is for the jury to decide in a given case whether the warnings given were adequate under the circumstances. Among the cases supporting this viewpoint are Southern Pac. R. Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (superseding the Arizona case cited by the appellant) and Hackett v. Wabash Railroad Co. (Mo.), 271 S.W.2d 573, which supersedes the Missouri case which the appellant cites.

The reasoning of these cases commends itself to this court. And it is said in 44 Am.Jur. 757, § 514:

'* * * the general rule is that the whole duty of a railroad company in respect of signaling the approach of its trains to highway crossings is not necessarily performed by a naked compliance with the statute in that behalf, and that such compliance does not encessarily relieve the railroad company from the necessity of taking such additional precautions as are essential to the safety of passers on the highway. * * *'

The common law requires that the warning given should be adequate under the circumstances. The jury in this instance may have found that the whistle was not sounded and that, had it been sounded, it would have been heard by the driver of the automobile in time to avoid the accident. It had before it for consideration the fact that the windows of the automobile were closed, and that there was a long warehouse between the automobile and the locomotive, which may have interfered with the transmission of the sound of the bell. It cannot be said as a matter of law that the sounding of the bell alone was an adequate warning under the circumstances.

We also find no merit in the contention of the Milwaukee that there was no probative evidence that the whistle was not sounded. It cites the cases of Cox v. Polson Logging Co., 18 Wash.2d 49, 138 P.2d 169, and Holland v. Northern Pac. R. Co., 55 Wash. 266, 104 P. 252. In the Cox case, the only evidence that the whistle was not blown was that of the driver of the automobile involved, who merely stated that he did not hear any whistle or bell; whereas there was an abundance of testimony, from both interested and disinterested witnesses, that the bell was rung and the whistle blown timely and repeatedly. We held that the testimony of the driver did not constitute substantial evidence and would not sustain a verdict. In arriving at this conclusion, however, we took note of the fact that a...

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