Meath v. Northern Pac. Ry. Co.

• Decision Date: 17 October 1934
• Docket Number: 25042.
• Citation: 36 P.2d 533,179 Wash. 177
• Parties: MEATH v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

36 P.2d 533

179 Wash. 177

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

No. 25042.

Supreme Court of Washington, En Banc.

October 17, 1934

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by Fred Meath against the Northern Pacific Railway Company and Marvin Robinson. From an order sustaining Robinson's motion for judgment notwithstanding the verdict and judgment dismissing the action, plaintiff appeals.

Reversed and remanded, with direction.

Leo Teats and Ralph Teats, both of Tacoma, for appellant.

Shank Belt & Rode, of Seattle, for respondents.

MAIN Justice.

This action was brought to recover damages for personal injuries. The cause was tried to the court and a jury. At the conclusion of the plaintiff's evidence, each of the defendants challenged the sufficiency thereof and moved for a dismissal. The motion of the defendant the Northern Pacific Railway Company was sustained, and that of the other defendant, Marvin Robinson, was denied. The trial resulted in a verdict of $5,000 against the defendant Robinson. He moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The trial court sustained the motion for judgment notwithstanding the verdict and denied the motion for a new trial. Judgment was entered dismissing the action, from which the plaintiff appeals.

The accident which caused the injury for which recovery was sought occurred on Union avenue in the city of Tacoma, at about the hour of 9 o'clock p. m., January 22, 1933. Union avenue extends north and south, and is crossed at the place of the accident by six railway tracks. To the north of the tracks the street is paved with concrete, also to the south, but across the tracks the roadway is planked. All of the railway tracks curve slightly. The curve of the three southern tracks is with the convex side to the north, and the convex side of the curve of the three northern tracks is to the south. The north rail of the south track is approximately one and one-half inches higher than the south rail. The planking is slightly lower than the rails. The railway tracks and the plank crossing made a street that was rough or bumpy. Just a short distance to the north of the north track is what is called a 'wigwag,' erected upon a concrete base. There is also one south of the south track. About eight hundred feet south of the south track, Union avenue enters South Tacoma Way, which is a street leading into the part of the city of Tacoma known as South Tacoma.

The respondent Marvin Robinson was the owner of a Ford coupe, which is an automobile of light weight and short wheel base. Some time during the morning of the day of the accident, the respondent invited appellant Fred Meath and one Frank Thomas to accompany him, as his guests, to Olympia to visit friends. All of the young men were experienced automobile drivers or truck drivers, and had been over the crossing mentioned many times and knew its condition. On the evening of the accident, it was raining, and the roadway was slippery. The three young men left Olympia to return to Tacoma probably between 7:30 and 8 o'clock. After driving a short distance out of the city of Olympla, the respondent asked the appellant to take the wheel and do the driving which he did. When they arrived in South Tacoma, which was something like a mile from the place of the accident, they stopped; the appellant saying that he wanted to go into a pool hall and see a friend. He entered the pool hall, did not find the friend, and, when he came out, approached the car on the right. As he had ridden from Olympia, the appellant was on the left at the wheel, Thomas in the center, and the respondent on the right. When the appellant approached the right-hand side of the car after coming from the pool hall the respondent said to Thomas, 'Slide over,' which would place Thomas under the wheel. The appellant got into the car on the right side, Thomas at the wheel, and the respondent riding in the center. They proceeded along South Tacoma Way until they reached Union avenue, when the automobile was turned into that street.

From Union avenue to the railway tracks, there is a downgrade of approximately 2 1/2 per cent. Thomas, driving the automobile, was proceeding at a speed of forty or forty-five miles an hour, and did not slacken that speed Before attempting to cross the railway tracks. Just Before they reached the south rail, the respondent exclaimed, 'Take her easy.' When about one hundred fifty feet from the north wigwag, Thomas having put on the brake, the car skidded until it hit the base of that wigwag, turned over on its side, and the appellant sustained the injury for which he sought recovery.

The facts, above stated, are such as we believe the jury had a right to find from the evidence, though there is dispute in the evidence with reference to some of the material matters.

This is a host and guest case. The appellant, being the guest of the respondent upon the trip which resulted in the accident, can only recover when the evidence is such that the jury could find therefrom gross negligence, which is a failure to exercise slight care. Saxe v. Terry, 140 Wash. 503, 250 P. 27; Blood v. Austin, 149 Wash. 41, 270 P. 103; Trunk v. Wilkes, 162 Wash. 114, 297 P. 1091.

In a number of cases, it has been held by this court that, where the driver of an automobile approaches a curve, knowing the condition of the roadway thereat, at such speed that he cannot make the turn, and the automobile leaves the road, the jury may find him guilty of gross negligence. Welch v. Auseth, 156 Wash. 652, 287 P. 899; Gough v. Smalley, 160 Wash. 193, 294 P. 1007; Zelinsky v. Howe, 163 Wash. 277, 1 P.2d 294. That rule would appear to be equally applicable where the driver of an automobile, with knowledge of the condition of the roadway, drives upon a rough and bumpy stretch thereof, at such speed that he loses control of the car. The principle must be the same when applied to the condition of a roadway as when applied to a curve.

The cases of Saxe v. Terry, 140 Wash. 503, 250 P. 27, and Blood v. Austin, 149 Wash. 41 270 P. 103, are different from this case, in that in each of those cases on the turn there was gravel or small rocks, which was a condition that the driver of the automobile could not have anticipated. Here, Thomas, the...