Morner v. Union Pac. R. Co.

• Decision Date: 06 August 1948
• Docket Number: 30508.
• Court: Washington Supreme Court
• Parties: MORNER et al. v. UNION PAC. R. CO. et al. STITH v. UNION PAC. R. CO. et al.

196 P.2d 744

31 Wn.2d 282

MORNER et al. v. UNION PAC. R. CO. et al.

STITH v. UNION PAC. R. CO. et al.

No. 30508.

Supreme Court of Washington

August 6, 1948

Department 2

Two actions, the first by Lester A. Morner and another, and the second by Grace Stith, against the Union Pacific Railroad Company and others to recover damages for personal injuries resulting from a collision between an automobile in which the plaintiffs were riding as passengers and a truck owned by some of the defendants, occurring when the motor vehicles were enveloped by a could of steam emitted by a railroad locomotive operated by the defendant railroad. Judgments for the plaintiffs against the named defendant, and the named defendant appeals.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Roy F Shields, of Portland, Ore., and Merritt, Summers & Bucey and Roscoe Krier, all of Seattle, for appellant.

Morrissey & Eagen, Lee Olwell, Skeel, McKelvy, Henke, Evenson and Uhlmann,

and Frederick V. Betts, all of Seattle, for respondents.

STEINERT, Justice.

Plaintiffs brought separate actions against defendants to recover damages for personal injuries resulting from a collision between an automobile in which plaintiffs were riding as passengers and a truck owned by defendants Fiorito and driven by their employee, defendant Jesse Helton. The collision occurred at a point on a highway where, at the time, both motor vehicles were temporarily enveloped in a cloud of steam which had been emitted by a railroad locomotive owned and operated by defendant Union Pacific Railroad Company and traveling on a track adjacent to the highway. The two actions were, on motion of defendants Fiorito and Helton consolidated for purposes of trial and appeal, and were tried to the court sitting with a jury. At the close of plaintiffs' case, the trial court sustained the challenge of the defendants Fiorito and Helton to the sufficiency of the evidence as to them and dismissed both actions insofar as they were concerned. At the conclusion of all the evidence the defendant Union Pacific Railroad Company moved for directed verdicts in both actions. The motion was denied, and the cause was submitted to the jury, which returned verdicts in favor of both plaintiffs. Motion for judgment notwithstanding the verdicts or, in the alternative, for a new trial was interposed by the defendant railroad company and was denied. Judgment was thereupon entered on the verdicts, and the railroad company appealed.

The accident out of which these actions arose occurred on East Marginal Way, in Seattle near the point where that thoroughfare would be intersected by Findlay street, were the latter street extended westwardly. In this vicinity, East Marginal Way extends generally in a northerly-southerly direction. It consists of two strips of pavement separated from each other by a twenty-three-foot strip of center, graveled roadway. The easterly strip, built of concrete and twenty feet wide, is used by north-bound traffic; the westerly strip, paved with brick and twenty-one feet in width, is used by southbound traffic.

Parallel to East Marginal Way in this same vicinity, and nine feet west of the westernmost portion thereof, is a standard gauge railroad track approximately four feet eight inches in width; eight feet west of this track, and parallel to it, is another railroad track of standard gauge. The two tracks are, within a few inches, at the same level as the brick pavement. The testimony indicates that the easterly railroad track is a spur track and that the westerly track is the main line. The entire area described above is, for all practical purposes, flat and level.

At approximately 7:30 a. m., on March 6, 1944, the defendant Jesse Helton, an employee of defendants Fiorito, was driving a Mack truck south along East Marginal Way, on the westerly portion of the westerly strip of pavement, which was immediately adjacent to the railroad tracks. The truck had a capacity of five cubic yards and was loaded with sand and gravel. Helton was alone and was driving at a speed of twenty or twenty-five miles an hour. The pavement was dry, visibility was good, and the atmospheric temperature registered approximately 33° Fahrenheit.

A railroad locomotive, owned by appellant, Union Pacific Railroad Company, was proceeding in the same direction, some distance ahead of the truck, and was pulling a 'drag' of seven freight cars. The locomotive and freight cars were traveling along the easterly railroad track, on the west, or right-hand side, of the truck at a speed of four or five miles an hour.

Respondents, Mildred M. Morner and Grace Stith, to whom we shall hereinafter refer as though they alone were respondents, were also traveling south on East Marginal Way, along the westerly portion of the westerly strip of pavement, but some distance back of both the locomotive and the truck. They were riding as paying passengers, under the so-called 'Share-a-ride plan,' in a 1930 Model A Ford coupe owned and being driven by one Mrs. Jeanne Shallow, and were on their way to work at the Boeing aircraft plant. Mrs. Morner was sitting in the middle of the seat, next to the driver, and Mrs. Stith occupied the extreme right-hand side thereof. The Ford coupe was traveling at a speed of twenty-five or thirty miles an hour.

Immediately prior to the time of the accident, the railroad locomotive and the two motor vehicles were traveling in the direction and at the respective rates of speed described above, and were occupying approximately the following relative positions: The locomotive, traveling on the easterly railroad track, was eighty feet north of the intersection of Findlay street and East Marginal Way. The truck, traveling along its right-hand portion of the westerly strip of pavement of East Marginal Way, was twenty feet from the rear, and to the east, or on the left-hand side, of the locomotive. The Ford coupe was fifty feet back of the truck, also to the east, or on the left-hand side, of the locomotive. Mrs. Shallow, driver of the Ford, was preparing to pass the truck, and had moved over to her left, or eastwardly, so that the Ford was slightly to the west of the center line of the westerly strip of pavement of East Marginal Way.

While the locomotive and the two motor vehicles were in these relative positions, a large quantity of steam emanated from the locomotive and enveloped an area extending along East Marginal Way for approximately one hundred feet or more and covering the entire westerly strip of pavement. By reason of its density, the steam precluded all visibility within its area.

As Helton, the driver of the truck, entered the cloud of steam he slackened his feed of gasoline and then gradually applied his brake. In this manner he proceeded approximately on hundred feet into the enveloping cloud. As Mrs. Shallow entered the clouded area, she too, applied her brake, slowly reducing her speed. While both the truck and the Ford coupe were thus traveling through this cloud of emitted steam, the right front end of the coupe struck the left rear end of the truck, causing the coupe to come to an immediate stop and, by the force of the impact, damaging it to such an extent that it was later sold for junk. The truck was brought to a stop a few feet south of the point of collision and was not damaged. The locomotive continued on its way down the track. It appears that none of the train crew was aware of the accident at the time and did not learn of it until the following day.

As a result of the collision between the two motor vehicles, both respondents were seriously injured and were taken to a hospital.

The evidence is in serious conflict on only one point of fact, that is, whether, as contended by appellant, the steam was properly emitted, through the injector valve of the locomotive, in its normal and usual operation, or whether, as contended by respondents, the steam was negligently ejected from the cylinder cocks of the locomotive or else through the injector valve in an excessive and unreasonable amount, either of which respondents allege was not a necessary, normal, or usual operation of the locomotive at the time here involved. The parties are in agreement as to all other facts, except for slight discrepancies respecting the relative distances between the three moving vehicles prior to the accident, and as to the actual point of collision.

Appellant's contentions during the trial were, and now are: (1) That Mrs. Shallow, driver of the Ford coupe, was guilty of negligence which was the proximate cause of the accident, in that, when she observed the cloud of steam ahead of her, she had ample time and room in which to stop her car and thus avoid the collision, but negligently failed to do so; (2) that the presence of the steam upon the highway was but a condition, and not a cause of the accident; and (3) that the steam was property emitted from the locomotive through its injector value, in the course of its normal and necessary operation.

Respondents' contentions were, and now are: (1) That Mrs. Shallow was guilty of no negligence and that none of her acts was the proximate cause or a concurring cause of the accident; (2) that the proximate cause of the accident was the presence of the cloud of steam upon the highway; and (3) that the steam was negligently emitted from the locomotive either through its cylinder cocks or through its injector valve in excessive amounts.

The question of contributory negligence on the part of the respondents was expressly withdrawn from the jury by an instruction given by the trial court, to which no exception was taken.

Appellant first assigns as errors the refusal of the trial court to grant appellant's motions for directed verdicts...