Haaga v. Saginaw Logging Co.

• Decision Date: 02 December 1931
• Docket Number: 23222.
• Citation: 165 Wash. 367,5 P.2d 505
• Parties: HAAGA v. SAGINAW LOGGING CO.
• Court: Washington Supreme Court

5 P.2d 505

165 Wash. 367

HAAGA v. SAGINAW LOGGING CO.

No. 23222.

Supreme Court of Washington

December 2, 1931

Department 1.

Appeal from Superior Court, Grays Harbor County; William E Campbell, Judge.

Action by Hugo Haaga against the Saginaw Logging Company and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

TOLMAN C.J., dissenting.

John C Hogan and Thomas S. Grant, both of Aberdeen, for appellants.

L. B. Sulgrove, of Tacoma, for respondent.

PARKER J.

The plaintiff, Haaga, commenced this action in the superior court for Grays Harbor county seeking recovery of damages for personal injuries which he claims he suffered as the result of the negligence of the defendants, logging company and Aubert, its motorman, in the operation of its gasoline railway motor upon its railway over a county road grade crossing. Haaga was riding in a Chevrolet sedan automobile owned and being driven by M. S. Hubbard northerly along the county road over the railway crossing when it was struck by the motor which was proceeding easterly on the railway, resulting in his very serious injuries for which he claims recovery. The cause proceeded to trial in the superior court, sitting with a jury, and resulted in verdict and judgment awarding to Haaga recovery against both defendants in the sum of $40,000, from which they have appealed to this court.

The logging company has been, for a period of several years past, engaged in extensive logging operations in Grays Harbor and Pacific counties. While its principal office has been maintained at Aberdeen, in Grays Harbor county, its principal headquarters for its logging operatins was, at the time in question, at the village of Brooklyn, in Pacific county, a short distance south of the common boundary of those counties. The village is composed largely of the logging company's plant, which consists of its roundhouse, its machine shop, its office, its store, a considerable number of its cottages occupied by its employees, and its railway yards for the accommodation of its large number of railway cars, its several steam locomotives, and its several gasoline railway motors. There are also some residences in private ownership. There is a post office near the northeasterly edge of the village.

The crossing where the accident occurred is a short distance easterly from the village. It is plainly a country crossing, not a town crossing. The nearest houses are some 300 feet distant from the crossing. The post office and a store are about one-quarter of a mile north of the crossing on the same county road. The roundhouse, shops, and office of the company are about one-quarter of a mile westerly from the crossing. Haaga occupied as his living quarters a cottage about one-quarter of a mile westerly from the crossing, a short distance from the office. Hubbard lived in his own house situated a little more than one-quarter of a mile southwesterly from the crossing near the same county road. The railway track crossing the road is the company's main line track leading from the roundhouse, office, and yards easterly out into the woods where the logging operations are carried on at different localities. Close to the county road on its westerly side and some 130 feet southerly from the crossing, there rises a steep bluff obstructing the view westerly along the main line track and a spur ending near the west side of the road some 38 feet south of the crossing. The road runs slightly west of south from the crossing to the bluff. It there turns more to the west around the bluff, continuing beyond Hubbard's house. The road is improved by a well-graveled surface 18 feet wide. The railway is of the usual construction of standard railways.

The motor in question, called by some of the witnesses a speeder, consists of a short railway flat car some 25 feet long, mounted on four ordinary railway car wheels, propelled by a ninety horse power gasoline engine mounted on one end of the platform, with a small cab immediately back of the engine. It has an automatic coupler on each end. It has a whistle capable of being heard a long distance; witnesses testifying that under favorable conditions the whistle could be heard a distance of several miles. It has two headlights, each of the usual automobile headlight type; one on the front of the top of the cab casting its rays forward, and the other on the rear of the top of the cab casting its rays to the rear. It weighs nine tons without any load. It is used to haul men and supplies between the company's headquarters and the logging operations out along its main and branch line tracks, and in switching cars in the yards. It is capable of moving efficiently six ordinary railway cars at one time.

At the time Haaga was injured, he had been employed by the logging company for a period of a year or more as head chainman of its surveying crew. Hubbard, a surveyor, was then working for the logging company as a member of the same crew. During the morning of the day in question, Hubbard walked from his home along the county road to the crossing and along the track to meet Haaga at headquarters, arriving there at about 7 o'clock. They then, with another member of the surveying crew, went in Haaga's automobile a distance of some two or three miles out into the woods, where Haaga parked his car near a road. They then commenced surveying near there, working towards headquarters. When they had completed their day's work at between 4 and 5 o'clock, they were but a short distance from headquarters. They then walked to headquarters, leaving Haaga's car where it had been parked. Haaga then went to his living quarters and changed his clothes. He then went with Hubbard to his home as a guest of Hubbard; this in any event wholly outside the course of the employment of either of them. They walked easterly along the railway track to the crossing and thence along the county road to Hubbard's home. As they passed the crossing, each of them remembered, though not very certainly, seeing cars standing on the spur west of the road and south of the main track. Cars so standing there would somewhat obstruct the view to the west along the main track, of one approaching the crossing along the road from the south. They visited together at Hubbard's home, having dinner in the meantime, until about half past 6 o'clock, or possibly a little later. Mrs. Hubbard then asked Hubbard to go to the store and post office on a family errand. Hubbard, intending to go in his Chevrolet sedan, offered to take Haaga along so he could at least ride a part of his way back to his living quarters.

Twilight had then been passed, almost into the full darkness of the night. Hubbard turned on the lights of his automobile, and, with Haaga sitting to his right in the front seat, drove along the road around the bluff to the crossing at a speed at no time of over fifteen to twenty miles per hour; and, as he says, slowing up at the crossing. He says upon approaching the crossing he looked in both directions along the track and did not see anything approaching thereon. He says he did not hear any whistle or bell and did not see any light indicating the presence of any moving object along the track. Haaga, sitting on the right, said he looked to the right, that is, to the east, along the track; his view being in that direction unobstructed for a distance of several hundred feet. While he says he glanced to the left, evidently he did so only casually, depending upon Hubbard to look out for possible danger from that direction. He says he did not hear any whistle or see any light or reflection thereof upon the track, indicating the presence of any moving object along the track. The automobile was struck, while on the crossing, by the motor approaching from the west. The motor was run up to or near the crossing, at a speed of fifteen to twenty miles per hour, though its speed was evidently checked Before coming in contact with the automobile upon the crossing. The front of the automobile passed the front corner of the platform of the motor and struck its automatic coupler. At almost the same instant the platform of the motor struck the side of the automobile. The motor was deriled, but did not upset. It pushed the automobile easterly a short distance off the crossing and the road. Haaga was thereby injured. A Mrs. Downing, living in a cottage about 300 feet westerly from the crossing and about 20 feet north of the track, testified that she was familiar with the whistle of the 'speeder' and had heard it on numerous occasions; that she heard the crash at the crossing, but did not hear any whistle Before the crash, though she was in her cottage when the speeder passed it and when the crash occurred at the crossing. She immediately went to the crossing to render such aid as she could to whoever might be injured. Aubert, the motorman, testified that the headlight was burning and the whistle was blown upon the approach of the motor to the crossing. His testimony has some support from one or two other witnesses.

It is first contended in behalf of the logging company that Haaga is entitled to relief, it at all, only from the accident fund of our industrial insurance law, and not directly against the logging company. To successfully maintain this contention, it would have to appear that Haaga was 'injured in the course of his employment.' See section 7679, Rem. Comp Stat., as re-enacted and amended by chapter 132, p. 329, § 2, Laws of 1929. We concede, for present purposes, that Haaga's employment by the logging company was an extrahazardous employment. He was employed by the defendant at a daily wage of $5.50 per day. He had no employment duties of any nature to perform for the company other than during his working hours, which were...