Holland v. Northern P. Ry. Co.

• Decision Date: 11 October 1909
• Parties: HOLLAND et al. v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

104 P. 252

55 Wash. 266

HOLLAND et al. v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

October 11, 1909

Department 1. Appeal from Superior Court, Adams County; Ralph Kauffman Judge.

Action by Moses Holland and another against the Northern Pacific Railway Company and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. H Plummer and F. H. McDermont, for appellants.

Cannon & Lee, for respondents.

FULLERTON J.

The appellant Della Holland, while crossing the track of the respondent Northern Pacific Railway Company in a buggy, was run into by a passenger train and injured, and this action was brought to recover damages therefor. On the trial at the close of the appellants' case in chief, the jury, at the direction of the court, returned a verdict for the respondents, and from the judgment entered thereon this appeal is taken.

The facts of the case are simple. Mrs. Holland and a woman companion left the town of Ritzville, Adams county, in an open buggy drawn by a single horse, shortly after 11 o'clock on the day of the accident, intending to drive a short distance into the country to a farm house. As they left the town they drove along a county road running parallel with the railroad track, for a distance of about a mile, to a point where the road turned to the right and crossed the railroad. There they stopped, looked, and listened, and, not seeing or hearing a train, proceeded to cross the railroad track, when they were overtaken and run into by an approaching train. The train causing the injury was a west-bound passenger train, which reached Ritzville on that day at about 12 o'clock m., some two hours behind its schedule time. After making its usual stop it proceeded on its way, running, in so far as the record shows, at its usual rate of speed and in its usual manner. The record shows further that from the road crossing at the place of the accident to Ritzville the country is comparatively level there being no natural obstruction that would prevent a person sitting in a buggy at the crossing from seeing a train approaching for the entire distance. The reason why the train was not observed approaching by the victims of the accident when they stopped, looked, and listened before venturing to cross the railway track on the day of the accident was because of the condition of the weather. Mrs. Holland testified, and in this she is supported by her witnesses that the wind was blowing a gale when she and her companion left the town of Ritzville, and that it continued so to blow during the time they were approaching the railroad crossing that great clouds of dust had been raised by the wind, preventing them from seeing any considerable distance at any time, and sometimes preventing them from seeing the horse which they were driving. Describing the conditions when they reached the crossing, the witness said: 'The dust was rolling up; just coming in clouds like a fog. * * * You couldn't see or hear. * * * It was just thick; you couldn't see in front of you, the wind was so strong and the dust'--and later on she says that the wind was blowing in the direction of the approaching train. After stopping in front of the track for a moment, and not seeing or hearing the approaching train, the appellant's companion, who...