Haft v. Northern Pac. Ry. Co.

• Decision Date: 24 September 1964
• Docket Number: No. 36516,36516
• Citation: 395 P.2d 482,64 Wn.2d 957
• Parties: Gus HAFT, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY, Respondent.
• Court: Washington Supreme Court

Page 957

64 Wn.2d 957

395 P.2d 482

Gus HAFT, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY, Respondent.

No. 36516.

Supreme Court of Washington, Department 2.

Sept. 24, 1964.

Rehearing Denied Dec. 7, 1964.

Greive & Law, R. R. Bob Greive, Seattle, for appellant.

Dean H. Eastman, Robert J. Allerdice, Seattle, for respondent.

HAMILTON, Judge.

Plaintiff (appellant), the operator of a power shovel owned by Kitsap County, was injured when the shovel was struck by defendant's (respondent's) train at a private crossing. Following a jury verdict in favor of plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict, and in the alternative for a new trial. Plaintiff appeals from this ruling.

This action was consolidated for trial with two other actions arising out of the same accident; the county's action against the railroad, and the railroad's action against the county, for property damage to the shovel and the locomotive. In the latter two actions the jury denied recovery to either party. Neither the county nor the railroad has appealed from the verdicts denying their claims.

The trial court's memorandum decision indicates the following approach as the basis upon which defendant's motions were granted:

'It is clear that the jury's verdict finding the railway company and the county both negligent was fully supported by the testimony introduced.

'The court instructed the jury on both phases of the last clear chance doctrine, but this could not have been the basis for the jury's verdict because they gave no recovery to the county. Haft's negligence continued until the collision, whereas, if anything, the county's negligence had ceased.

'This leaves the only question to be determined on defendant's motion for judgment notwithstanding the verdict the problem of whether or not Haft was guilty of contributory negligence as a matter of law. If he was, the defendant's motion should be granted, but if not, the verdict must be allowed to stand.'

The trial court then concluded that plaintiff was guilty of contributory negligence as a matter of law. ¹

At the threshold of this appeal, defendant interposes a motion to strike plaintiff's brief asserting, basically, two reasons: (1) that plaintiff failed to clearly state his assignments of error; and, (2) that plaintiff failed to file a concise statement of points upon which he intended to rely (this on the basis that the appeal was upon a short record).

In his opening brief, while not specifically designating his contention as an assignment of error, plaintiff states, on page 5: 'This is an appeal taken from an order granting an motion for judgment notwithstanding the verdict * * *' A further reading of the brief leaves little doubt as to the ruling of the trial court from which plaintiff is appealing. In a supplemental brief, plaintiff designates as his assignment of error the statement that, 'The trial court erred because there was evidence or a reasonable inference from the evidence to sustain a verdict.' Again, a reading of the brief demonstrates the basis of plaintiff's appeal. While we cannot commend plaintiff for clarity and preciseness in spelling out his assignment of error, we are satisfied there has been a minimal compliance with the rules on appeal and that defendant has not, in fact, been prejudiced. Moore v. Spokane, 88 Wash. 203, 152 P. 999.

The second ground of defendant's motion is predicated upon Rule on Appeal 34(3), RCW Vol. O, relating to appeals upon a short record. The basic purpose of the requirement that an appellant serve and file a concise statement of the points, upon which he intends to rely, with a proposed short record is to afford the trial court and opposing counsel an opportunity to evaluate the necessity of including additional material in the record. The requirement is not jurisdictional. Smith v. McDaniel, 53 Wash.2d 604, 335 P.2d 582. In the instant case, the statement of facts, which is 472 pages in length, contains all testimony bearing upon the issue of liability, the trial motions and rulings, the trial court's instructions, and the exceptions thereto. The medical testimony bearing upon the issue of plaintiff's damages is omitted, which the statement of facts recites was omitted upon stipulation of the parties. The record reveals no proposed amendments to the statement of facts, and the trial court certified it as containing all material facts, matters, and proceedings. The defendant does not assert, nor do we find, any prejudice to it by virtue of plaintiff's failure to file a concise statement of points. Smith v. McDaniel, supra.

Defendant's motion to strike plaintiff's brief is denied, however, plaintiff will be denied costs for his briefs.

In considering the question of whether the trial court correctly granted defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial, we are mindful of the oft stated rule that in passing upon such motions the evidence, and all reasonable inferences therefrom, must be viewed in a light most favorable to the non-moving party, and if there is substantial evidence supporting the verdict of the jury, the verdict must stand. Young v. Seattle, 60 Wash.2d 805, 376 P.2d 443.

The circumstances leading up to the collision involved, may be summarized as follows:

On November 12, 1958, plaintiff, a Kitsap County employee, was directed by his supervisors to transport a county-owned power shovel from Silverdale to the county gravel pit located east of the railroad crossing in question. With the assistance of two other county employees the shovel was loaded onto a 'lowboy' trailer and taken to the Kitsap County road shop located immediately west of the railroad crossing. The power shovel was an orange colored, three-quarter yard, Bay City Model 45, weighing approximately 24 tons, which moved on caterpillar tracks 14 feet 10 inches long. Including the shovel boom, the machine was approximately 35 feet in length. The railroad tracks at the crossing were 61 1/4 inches wide.

At approximately 9:30 a. m., the shovel was unloaded from the trailer, and plaintiff proceeded to 'walk' it at full speed toward the railroad crossing and the gravel pit east of the crossing. Full speed for the shovel was about one mile per hour. Plaintiff's course to the gravel pit was easterly, while the railroad tracks over which he had to cross ran generally north and south.

The railroad tracks approached the crossing from the south coming out of a long curve into a cut. Visibility to and from the crossing was limited to about 800 feet. Midway in the curve of the...