McFadden v. Northern P. Ry. Co., 22322.

• Decision Date: 17 June 1930
• Docket Number: 22322.
• Citation: 289 P. 1,157 Wash. 437
• Parties: McFADDEN v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

289 P. 1

157 Wash. 437

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

No. 22322.

Supreme Court of Washington

June 17, 1930

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Goldie McFadden, as administratrix of the estate of Oriel McFadden, deceased, against the Northern Pacific Railway Company and another. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Homer T. Bone and Hayden, Langhorne, & Metzger, all of Tacoma, for appellant.

L. B Da Ponte, of Seattle, and J. W. Quick, of Tacoma, for respondents.

FULLERTON J.

The husband of the appellant, while driving an automobile on a public street of the city of Tacoma, collided with a train of the respondent Northern Pacific Railway Company, receiving injuries from which he died some days later. In this action the appellant, as administratrix of his estate, sought to recover in damages for his death. On the trial at the conclusion of the appellant's evidence in chief the respondent interposed a challenge to its sufficiency to sustain a recovery. This challenge the trial court sustained, entering a judgment of dismissal.

The street on which the husband of the appellant was driving at the time he met with his death is in the industrial part of the city of Tacoma. It is paved in its center for a width of twenty feet and in certain parts of the day carries a considerable amount of traffic. At the place of the accident, and for a considerable distance on each side thereof, the course of the street is straight, and its surface comparatively level. The main line of the respondent railway company crosses the street at right angles and is double-tracked. Southerly from the intersection of the main line tracks with the street, a spur track connects with the most westerly of the two main tracks and extends therefrom in a northwest direction, crossing the paved part of the street some thirty feet north of the westerly main track. Its general course is slightly curving.

Prior to the accident a string of flat cars, twenty-five in number, loaded with logs, had been switched onto the spur track and unloaded. At about 11:45 p. m., on the night of the accident, a switch engine was sent down from the respondent's switching yards to haul out the empty cars. The end car of the string, nearest in the direction of the approach of the engine, was but a few feet back from the northerly side of the street, and the engine, when coupled to the string, stood partly in the street. As soon as the coupling was made, the engine started back hauling the cars. When the engine started, no vehicle, visible from the position of the engine, was approaching it along the street from either direction.

After the engine had got well started and was moving the train between six and eight miles per hour, the husband of the appellant, driving an automobile westerly along the street, drove into the moving train, striking it possibly some eight or ten car lengths from its rear end. No witness who was sworn at the trial saw the accident. The wheel tracks of the automobile indicated that the driver discovered the train after he had crossed the two main tracks; as the marks of his car tracks showed that he turned from the paved part of the way to his right onto the unpaved portion of the street and struck the train with the left front of his automobile at a place estimated by a witness as some five feet northerly from the paved way. The automobile was almost completely demolished by the blow.

The railway company maintained at the place the usual crossing signs, but no other warning appliances of any kind. There were no lights, bells, or other alarms at the place, nor did it station guards at the place while the train was crossing nor did the city maintain a light at the place. There was evidence of a low hanging fog...