McKinney v. Port Townsend & P.S. Ry. Co.

• Decision Date: 06 June 1916
• Docket Number: 12940.
• Citation: 158 P. 107,91 Wash. 387
• Court: Washington Supreme Court
• Parties: McKINNEY et al. v. PORT TOWNSEND & P. S. RY. CO. et al.

158 P. 107

91 Wash. 387

McKINNEY et al. v. PORT TOWNSEND & P. S. RY. CO. et al.

No. 12940.

Supreme Court of Washington, En Banc.

June 6, 1916

Appeal from Superior Court, Jefferson County; J. M. Ralston, Judge.

Action by Jessie McKinney and others against the Port Townsend &amp Puget Sound Railway Company and others. From a judgment for plaintiffs, defendants appeal. Judgment reversed, and cause remanded for new trial.

Morris C.J., and Fullerton, Chadwick, and Mount, JJ., dissenting.

Corwin S. Shank and H. C. Belt, both of Seattle, and Tom W. Holman of Port Townsend, for appellants.

A. R. Coleman and Allan Trumbull, both of Port Townsend, for respondents.

ELLIS J.

Action by the widow and minor children of James R. McKinney, deceased, for damages for his death as the result of a collision which took place on the afternoon of July 3, 1914, between an automobile driven by the deceased and a train operated by the defendant Port Townsend & Puget Sound Railway Company upon a railroad which that company had leased from the defendant Port Townsend Southern Railroad Company. The place of the accident was at Junction Crossing, where the highway from Blynn to Port Townsend crosses the railroad track. The railway from a point between 400 and 500 feet south of the crossing to a considerable distance north of the crossing runs in practically a straight line a little east of north. The highway at a point about 500 feet northward from the crossing approaches the railroad from a westerly direction to within about 46 feet of the track, where it bends to a southeasterly direction and continues almost parallel with the railroad to within about 40 feet of the crossing, when it makes a sharp turn across the railroad track, and then extends northward on the other side of the track. Throughout all of this distance the space between the highway and the railroad track is grown up with trees and bushes. Immediately south and west of the crossing where the highway turns across the track stands an old two-story frame building adjacent to the highway and extending up to within 18 or 20 feet of the railroad track. This building belongs to and is used by the railroad company. The highway is lower than the railroad track, but gradually rising, and at a distance of about 80 feet from the crossing rises at a grade of 12 1/2 per cent., which is maintained to the track. It appears from the map and a large number of pictures in evidence that because of the building, trees, and brush on the railroad right of way there was only a narrow space through which travelers on the highway and for only a part of the distance between the point where it begins to parallel the railroad and the crossing could get a view of the railroad track south of the crossing. On the front seat of the automobile with the deceased was the wife of his brother, J. E. McKinney, who, with Dayton Beveridge and Louis Jacobson, occupied the rear seat; Jacobson holding upon his lap a small child of J. E. McKinney. All of these had been over the road before, except Mrs. McKinney and Beveridge. A short time before reaching the crossing both the deceased and his brother remarked that they were approaching the railroad crossing. J. E. McKinney testified:

'We didn't stop the car at any place up along that grade to see if there was a train coming. We didn't do anything more than keep a lookout for the train. The last grade is steeper than any of the rest. I think at the bottom of the pitch my brother threw his gear into intermediate. I spoke to all of them and told them there was the railroad crossing. I think my brother was looking for the train, and we were listening for the train.'

Mrs. McKinney testified:

'An we were about halfway up that grade approaching the railroad the deceased said. 'We are coming to the junction,' and turned back to attend to the car and looked up the road. There was no more said; that was the last he spoke. It seemed to me that the grade was steeper just before we turned to the crossing. I noticed the building close to the track. I should think it would cut off the view from the track; as we approached it it seemed to me it did. I didn't see the railroad track to the south before getting up to within 15 or 20 feet of it. I didn't hear any whistle or bell as we were coming up the grade.'

Beveridge testified that he does not remember personally listening or looking for the train; that the first he knew of danger was J. E. McKinney calling to those in the automobile to jump. None of the occupants of the automobile saw or heard the train until after the automobile came from behind the building 18 or 20 feet from the track. The automobile ran forward onto the track, where for some unaccountable reason it stopped, stood for a few seconds, and was struck by the engine. Mrs. McKinney, J. E. McKinney, and Beveridge jumped in time to avoid injury. Jacobson was in the act of jumping when the shock of the collision threw him to the road and stunned him. The child remained in the automobile and was uninjured. The deceased received injuries from which he died the same evening. The train consisted of an engine and one passenger car. For a considerable distance beyond the curve to the south of the crossing there is a slight downgrade towards the crossing. The train was allowed to drift down this grade without the application of steam.

It was charged that the defendants were negligent in failing to remove brush and trees from the right of way south of the crossing so that persons traveling on the highway could see trains approaching from that direction; in maintaining the house on the right of way on the westerly side of the railroad in a position to obscure the track to the south from persons approaching on the highway; in failing to blow the whistle and ring the bell as warning of the approach of the train; in operating the train with an inexperienced and incompetent fireman and engineer; in the failure of the engineer and fireman to see the automobile until the train was within 100 feet of the crossing; and in failing to stop the train before the collision.

At appropriate times motions for a nonsuit and for a directed verdict were interposed by the defendants. Both were overruled. The jury returned a verdict in favor of the plaintiffs for $20,000. The defendants' motion for a new trial was denied upon condition that the plaintiffs remit from the verdict the sum of $5,000. The condition being accepted. Judgment was entered for the sum of $15,000, and costs. The defendants appeal.

Of the many claims of error we find it necessary to consider at length but two: (1) Was the deceased guilty of contributory negligence? (2) If he was, did the court err in submitting the case to the jury on the doctrine of last clear chance?

In discussing the question of contributory negligence we shall assume that the appellants' engineer and fireman were inexperienced and incompetent. A careful consideration of the evidence on that point convinces us that it presented a question for the jury. We shall assume that they were negligent in not sounding the bell or whistle continuously until the crossing was reached, as required by the statute (Rem. & Bal. Code, § 2528). Under a statute couched in terms almost identical with ours the Supreme Court of Montana has held that the failure on the part of a railroad company to observe the prescribed statutory precautions is negligence as a matter of law. Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 P. 140. This court is definitely committed to the doctrine that a failure to observe a positive statutory duty is negligence per se. Engelker v. Seattle Electric Co., 50 Wash. 196, 96 P. 1039; Wilson v. Puget Sound Electric Ry. Co., 52 Wash. 522, 101 P. 50; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Anderson v. Kinnear, 80 Wash. 638, 141 P. 1151.

Both the fireman and the engineer testified that the whistle was sounded only once and at a distance of 1,200 feet from the crossing. As to whether or not the bell was sounded as the train approached the crossing the evidence was conflicting. While the fireman and engineer and one passenger on the train testified that the bell was rung until the emergency brakes were applied about 100 feet from the crossing, other witnesses who heard the whistle when the train was a quarter of a mile further away, and one of whom actually saw the collision, testified that they did not hear the bell at all. All of the occupants of the automobile said that they did not hear either the bell or the whistle. It is true that the evidence that the bell was not sounded was negative in form, but it was as positive in character as the nature of such a case will usually permit. It was sufficient to take the question to the jury. Riley v. Northern Pacific Ry. Co., 36 Mont. 545, 93 P. 948; Walters v. Chicago, M. & P. S. R. Co., 47 Mont. 501, 133 P. 357, 46 L. R. A. (N. S.) 702; C., B. & Q. Ry. Co. v. Cauffman, 38 Ill. 424.

We shall also assume that, owing to the building, trees, and bursh on the appellants' right of way in close proximity to this crossing so as to obscure the view of the railroad track from the road north of the crossing, the deceased was not guilty of contributory negligence as a matter of law in failing to discover the approach of the train until he passed up the incline from behind the building to within 18 or 20 feet of the track. Whether the deceased was guilty of contributory negligence in failing to discover the approach of the train prior to that time was under the evidence a question for the jury. The court instructed the jury that the existence of this obstruction was an element to be taken into consideration in determining the degree of care to be exercised, and imposed a like degree of care on both the...