Klouse v. Northern Pac. Ry. Co.
| Decision Date | 13 June 1957 |
| Docket Number | No. 34029,34029 |
| Citation | 50 Wn.2d 432,312 P.2d 647 |
| Parties | Stanley E. KLOUSE and West Coast Fast Freight, Inc., Respondents, v. NORTHERN PACIFIC RAILWAY COMPANY, a corporation, and Peter Meyer, Appellants. |
| Court | Washington Supreme Court |
Brown, Hovis & Cockrill, Yakima, Dean Eastman, Roscoe Krier, Seattle, for appellants.
Robert A. Felthous, Robert F. Brachtenbach, Selah, for respondents.
This action concerns an accident in which the plaintiff Klouse, driving a 68-foot tractor and trailer (hereafter referred to as a truck), belonging to his employer, the plaintiff West Coast Fast Freight, Inc., collided with a four-unit, 200-foot, diesel locomotive belonging to the defendant and cross-complainant Northern Pacific Railway Company and operated by the defendant Peter Meyer. The complaint contained a number of allegations of negligence including allegations that the defendants were operating the locomotive at an excessive rate of speed without adequate lights, and had failed to warn the plaintiff Klouse of the train's approach. Further negligence was alleged, in that those in charge of the train failed to take advantage of the last clear chance to avoid the accident. In their answer, the defendants denied that they were negligent in any particular and alleged that the accident was due solely to the negligence of the plaintiff Klouse. In its cross-complaint, Northern Pacific Railway Company asked compensation for the damage done to the locomotive, which was struck approximately 28 feet from the front of the leading unit by the truck.
The jury returned a verdict in favor of the plaintiffs, and the defendants have appealed, assigning error to the denial of various motions and the giving and refusing of instructions.
The accident in question occurred on a dark, but clear night, at approximately 2:00 a. m., on February 11, 1955, at a point where Meade avenue crosses track No. 2 in the Northern Pacific freight yard in the city of Yakima. The plaintiff Klouse drove his truck out of the West Coast Fast Freight terminal, which is about 2,000 feet west of the railroad tracks, and proceeded east toward the crossing. As he reached the most westerly pair of tracks, where the crossing signal is located (54 feet west of track No. 2), he looked both ways and slowed down, but did not stop. He did not observe the signal operating and did not see a train upon the tracks until he was about halfway between the signal and track No. 2. When he became aware of the approaching train, which was then only about 15 to 18 feet from the crossing, he applied his brakes and skidded into the locomotive as the first unit passed over the crossing.
Shortly before the accident occurred, the locomotive had come into the yard and had detached its freight cars north of Meade avenue. It then proceeded south across Meade avenue to a switching station one half mile south of Meade avenue, where it was switched from track No. 1 to track No. 2. When this was accomplished, the engineer was seated in the rear unit and was operating the locomotive from that position, since the power was out on the two leading units. The fireman, who had control of the brakes and the whistle, sat with the head brakeman in the leading unit. He testified that he turned on the headlight and the interior lights, and that as the locomotive approached the crossing, returning north toward the roundhouse, he sounded the signal-crossing warning. All three of the men on the train testified that they observed the approaching vehicle when it was some 600 to 800 feet from the crossing. It appeared to be traveling at a speed of about 25 to 30 miles per hour. They kept their eyes upon it, as it was the only vehicle in sight. When it failed to stop at the signal (which, according to their testimony, was fiashing), the fireman reached for the brake handle, but at the same moment the brakes were applied by the engineer.
The engineer stated in his testimony that when the truck was within 300 feet of the track, it was in the danger zone, meaning, as he said, that one or the other would have to do something to avoid a collision. The train was proceeding at 'yard speed,' or approximately 12 miles per hour, and at that speed, under ordinary conditions, it could stop in 85 feet. In this case, a greater stopping distance was actually required, because the impact of the truck punctured the oil tank and a large quantity of oil was spilled on the tracks, which caused the train to slide.
At the rate of speed at which the truck was traveling, 20 miles per hour, its stopping distance was 35 feet.
An engineer called by the defendants testified that when one proceeding east on Meade avenue reaches a point 200 feet from track No. 2, he has an unobstructed view of the tracks as far south as the switching station, or a distance of 2175 feet.
Some of the assignments of error concern the court's failure to give instructions pertaining to the negligence of the plaintiff Klouse. The court instructed the jury that Klouse was negligent as a matter of law, in failing to operate his vehicle in such manner that he might bring it to a complete stop within ten feet of the nearest track. This negligence alone, being unquestionably a proximate cause of the accident, was enough to bar the plaintiff's recovery unless the doctrine of last clear chance was applicable, and the defendants were not harmed by the failure to give the requested instructions.
On the other hand, we are convinced that this is not a case in which the doctrine of last clear chance can be applied. That doctrine, as often enunciated by this court, gives to a party guilty of contributory negligence the right to recover in spite of his own negligence if the defendant had an opportunity to avoid the accident and failed to take advantage of it.
The application of the doctrine to a state of facts disclosed by evidence introduced in a jury trial is a question of law to be determined by the court. Sarchett v. Fidler, 37 Wash.2d 363, 223 P.2d 843; Stokes v. Johnstone, 47 Wash.2d 323, 287 P.2d 472. The last clear chance rule, as applied in Washington, has two phases. In the one, the plaintiff's negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff's...
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