Hines v. Johnson

• Decision Date: 05 April 1920
• Docket Number: 3415.
• Citation: 264 F. 465
• Parties: HINES, Director General of Railroads, v. JOHNSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F. 465

HINES, Director General of Railroads, v. JOHNSON et al.

No. 3415.

United States Court of Appeals, Ninth Circuit.

April 5, 1920

Rehearing Denied May 17, 1920.

Arthur C. Spencer and J. F. Reilly, both of Portland, Or., and Hamblen & Gilbert, of Spokane, Wash., for plaintiff in error.

Chas P. Lund, of Spokane, Wash., for defendants in error.

Verdict and judgment for damages by reason of the death of Charles Ernest Johnson, as a result of a collision at Spokane between an automobile, in which Johnson was riding as a guest, and a freight train of the Oregon-' Washington Railroad &amp Navigation Company, at about 10:15 o'clock on the night of July 28, 1918. The railroad company brought writ of error.

The deceased and one Ray were on the front seat of the automobile; Ray being the driver. They were driving northward on Division street, a thoroughfare 60 feet wide and running north and south. At the time of the accident a track of the railroad company crossed Division street in an easterly direction, running from the southwest to the northeast. At the outer side of the sidewalk and across the tracks there were gates, so maintained that before a train could cross Division street it would be brought to a standstill in order to allow a switchman to get off the train, unhook the gates and swing them away from the track. Upon the night of the accident there was an arc light burning at the crossing above the middle of the street about 50 feet from the railroad track. Ray, the driver, had been employed by the Great Northern Railway as brakeman for a number of years, was accustomed to driving automobiles, and had driven the one here involved for two months. After saying that on the night of the accident he was driving north on the east side of Division street at about 12 or 15 miles an hour and that he saw nothing at all there, he continued:

'And just as we came on the track there the cars were shoved out and caught us, caught the automobile about square in the middle, and about the time the collision occurred I saw the box car, and about the same time it seemed like a light came around the corner of the car. We were shoved along about 15 or 20 feet down the track, and Mr. Johnson, who was riding on the right-hand side of me, was badly injured. I was injured myself. * * * I am familiar with lantern signals given by railroad companies, as it is a part of my business as a railroad brakeman on trains. I did not see any signal of any kind given, on the street or elsewhere, as I approached the corner and before I was struck. The night, as near as I can remember, was pretty dark; cloudy. There is one light there that I know of, and that is about 50 or 60 feet south of the O.R. & N. tracks. This light is an arc light. It seemed like it was just about far enough away, so it creates a shadow right over the track, rather than to light the track. I never noticed any light on the other side of the street. * * * I did not hear any signal of any kind given, nor any ringing of the bell on the engine. There was no signal given by the whistle of the train either.'

On cross-examination Ray said he could not tell how fast the train was going at the time it struck; that there was no flag or signal of any kind on his side of the train as he approached it, except 'just as they came onto us'; that he and deceased and a third man had been to a restaurant, and after eating Ray and Johnson started for home. Witness said he was familiar with the railroad tracks at the point of the accident; that he was going slowly, because one had to pick his way across the tracks, so as not to damage the car; that his headlights were burning; that the whole end of the car struck the automobile 'in a sort of a side swipe'; that he did not see the train at all until the very moment it struck; that he made no turn of the automobile wheel in an attempt to turn it either way, in order to get out of the way and avoid the collision; that the train pushed the machine 15 or 20 feet; that he saw no one give a stop signal to the train; that there was some wood piled to the east side of the street, which he noticed; that there was a building around there, and the arc light, if it was burning, would cast a shadow; that Johnson did not say anything to him about the railroad crossing, and made no warning cry before the crossing was reached, and made no suggestion as to the running of the car; that he did not remember that Johnson said anything during the time that the car was running the last block before the accident; that he did not know whether there were red lanterns hanging on the gates at the time they approached the corner; that he did not examine to determine whether the gates were across the track, or had been brought back; that he was looking ahead, using his eyes to see what was in front of him.

A witness present a few minutes after the collision said that the freight car was jammed into the side of the automobile; that there was considerable wood piled up along the crossing of the sidewalk on the east side of Division street; that when he first saw the automobile it was headed directly north, and the car was right 'into it, the north corner of the railroad car being imbedded in the automobile. ' Another witness said that he was driving a machine south on Division street on the night of the accident; that the night was very dark; that he heard a crash, and looked up, and looked into the lights of the automobile that was caught by the car; that he saw the car being dragged over the street; that he saw nobody with a lantern flagging the train; that the box car was imbedded in the automobile, and when they attempted to move the train the automobile followed a short distance, a foot or two, and was then released; that he thought about a third of the car was projecting past the box car, the corner of the freight car being just about even with the wind shield.

Other witnesses, who were riding in an automobile coming south, testified in effect that they saw no one waving a lantern back and forth immediately before the accident occurred, and that they saw the automobile being dragged.

Robinson the fireman on the locomotive of the train, said that his duty was to take all signals going over Division street, because the engineer could not get them from the street, and that he was supposed to ring the bell himself in going across Division street; that as the train backed into Division street witness was fixing the...