Morris v. Chicago, M., St. P. & P.R. Co.

• Decision Date: 05 December 1939
• Docket Number: 27617.
• Citation: 97 P.2d 119,1 Wn.2d 587
• Court: Washington Supreme Court
• Parties: MORRIS v. CHICAGO, M., ST. P. & P. R. CO. et al.

97 P.2d 119

1 Wn.2d 587

MORRIS v. CHICAGO, M., ST. P. & P. R. CO. et al.

No. 27617.

Supreme Court of Washington

December 5, 1939

Opinion Adhered to on Rehearing March 14, 1940.

See 100 P.2d 19.

Department 2.

Action by Opal Morris, as personal representative of the estate of Wade Morris, deceased, against Chicago, Milwaukee, St. Paul &amp Pacific Railroad Company, a corporation, and Henry A Scandrett, Walter Cummings, George I. Haight, trustees in bankruptcy thereof, and Frank Warren and Charles T. Holley for the death of plaintiff's decedent as a result of grade crossing collision between truck operated by decedent and railroad train. From a judgment for plaintiff, wherein decedent's widow was awarded sum of $10,000 decedent's daughter, Dorothy, was awarded $3,000, decedent's son, Danell, was awarded $5,000, and another child by name of Marion was awarded $7,000, Henry A. Scandrett, Walter Cummings, George I. Haight, trustees in bankruptcy, and Frank Warren and Charles T. Holley, appeal.

Judgment reversed with instructions to dismiss the action.

BLAKE, C.J., dissenting.

Appeal from Superior Court, King County; Calvin S. Hall, judge

A. N. Whitlock, Thos. H. Maguire, and A. J. Laughon, all of Seattle, for appellants.

Will G. Beardslee and George F. Ward, both of Seattle, for respondent.

JEFFERS Justice.

This action was instituted by Opal Morris, as the personal representative of the estate of Wade Morris, deceased, for the benefit of herself and three minor daughters, to recover damages against the defendants, Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a corporation, Henry A. Scandrett, Walter Cummings and George I. Haight, trustees in bankruptcy thereof, Frank Warren and Charles T. Holley, for the death of Wade Morris, husband of plaintiff and father of the three minor children, which occurred at a highway grade crossing west of Ellensburg, in a collision between a truck operated by deceased and the regular passenger train of the defendant corporation, operated at the time by defendants Frank Warren and Charles T. Holley.

The complaint, in so far as material herein, alleged that while the truck of deceased was lawfully on the railroad and highway crossing, one of defendant corporation's trains, traveling in a westerly direction, and being operated and controlled by the defendants Frank Warren and Charles T. Holley, without sounding any whistle, bell or warning of any nature whatsoever, and traveling at a dangerous, excessive and unlawful rate of speed of sixty miles per hour, or more, crashed into the truck and caused the death of Wade Morris. The complaint further alleged that the highway and crossing are clearly visible to anyone operating a train along the railroad in a westerly direction for more than a mile east of the crossing.

The answer denied the allegations of negligence in the complaint, and affirmatively alleged that the contributory negligence of deceased was the sole proximate cause of the collision and death of deceased. The reply denied the affirmative matter alleged in the answer.

The action was tried to the court and jury, and resulted in a verdict in favor of plaintiff, wherein damages were awarded to the widow in the sum of ten thousand dollars, and to the daughters of deceased and plaintiff as follows: Dorothy Morris, three thousand dollars, Danell Morris, five thousand dollars, and Marion Morris, seven thousand dollars.

A challenge to the sufficiency of the evidence was interposed at the end of plaintiff's case, which was denied. Motion for judgment notwithstanding the verdict, and in the alternative for new trial, were timely made and denied, and this appeal by defendants followed.

By stipulation of counsel, the defendant Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a corporation, was dismissed from the action, and this appeal is being prosecuted by the other defendants.

The accident occurred about four miles west of Ellensburg, at approximately fourthirty A. M., on the morning of July 28, 1938, at a point where the highway to the coast over Snoqualmie pass crosses the main line of the railroad. The highway referred to is what is known as the old road, and was being used, and had been used since about April 1st, for the reason that the new highway was being paved.

The physical facts relative to the crossing, the highway upon which deceased was proceeding at the time of the accident, and the conditions generally existing at the scene of the collision are, we think, undisputed. The highway runs nearly parallel with the railroad track for some considerable distance east of the crossing. There were no trees, brush or any other obstruction, except telephone poles along the north side of the highway and the trolley poles on the south side of the tracks, for a distance of about sixteen hundred feet. The testimony shows that at about sixteen hundred feet east of the crossing, it is 442 feet between the highway and the tracks, and that from the center of the highway to the nearest rail at the point where the highway makes the turn to the right to cross the tracks, is forty-five feet. The testimony conclusively shows that it was daylight. There was a railroad crossing sign over two hundred feet east of the crossing on the highway, and a large warning sign at the crossing.

Deceased had been over this road the day Before , going after hay, and at the time of the accident, was returning toward his home in Renton. Deceased was driving a Mack truck, and had the hay loaded thereon so that it was about eight feet wide, and came up higher than the top of his cab, his view to the rear being entirely obstructed by his load. The cab had side windows, the dimensions of which were about sixteen by eighteen inches.

Following the truck driven by deceased was another truck driven by Lyle Hall, who was accompanied by his thirteen year old daughter, and some distance behind the Hall truck was another truck, also traveling west, driven by Earl Clark, accompanied by Sidney King. There was no traffic immediately approaching from the west.

Deceased had driven onto the highway ahead of the Hall truck, from a cross-road leading into it from the new highway, at a point about three-quarters of a mile east of the crossing, and thereafter had proceeded ahead of the Hall truck to the crossing. Lyle Hall, called as a witness for appellants, stated that his speed from the time deceased pulled in ahead of him to the crossing was about twenty-six to twenty-seven miles per hour; that deceased was about three hundred feet ahead of him, and remained about that distance in front of him until deceased turned to cross the tracks. The witness further testified that he saw deceased's truck at all times after it came on the road in front of him, until it was struck. Hall further testified that as deceased came onto the turn, he slowed down to about ten to twelve miles per hour, and was moving at that speed when struck by the train. Hall further testified that at the time of the collision, he was two hundred to two hundred fifty feet behind deceased, and that deceased did not stop prior to crossing the tracks. He further testified that the train was about one hundred fifty to two hundred feet from the crossing when deceased started to make the turn, and that he thought the train was going forty to forty-five miles per hour. He also testified he heard no whistle.

Earl Clark, who was driving the truck following the Hall truck, called as a witness for respondent, testified that he was about a quarter of a mile from the crossing at the time of the collision. The witness stated that he was driving at about forty to forty-five miles per hour, and that the train was going sixty to sixty-five miles per hour; that he could see the truck which was struck, although there was another truck loaded with hay between him and deceased's truck; that it was daylight, and he was not using lights to drive by; that there were no buildings, trees or cuts to keep one from seeing the train, and that it was perfectly level. This witness and others testified that it would be impossible, because of the load, for deceased to see back in the direction the train was coming, until he went into the turn to approach the crossing, and the testimony varies as to how far one could then see, unless he stopped and leaned out of the car window. The witness heard no whistle.

Sidney King, a witness for respondent, testified he was a truck driver, and lived at Yakima. He was riding with Clark, and he testified that when they were about three-tenths of a mile from the crossing, he saw two trucks ahead of them, and that one of them stopped and the other one just started to pull onto the tracks, when there was a big flash of fire; that he saw the train when it was about a quarter of a mile from the crossing; that the train was going sixty to sixty-five miles per hour, and that the Clark truck, in which he was riding, was going forty to forty-five miles per hour; that the truck which was struck was down close to the curve when he first saw it, and was going quite slow, probably five miles an hour. He further testified that he just presumed deceased's truck was going at that speed; that he could see a quarter of a mile ahead and tell how fast the truck was going. The witness did not know whether deceased's truck stopped Before crossing or not.

Mr Westerfield, an employee of the Railway Express Agency, and in no way connected with appellants, except that he worked on the train, testified that he was looking out the window on the left side, and saw the two trucks loaded with hay; that he saw them shortly Before the first truck passed from his view as it went into the turn to approach the crossing; that the other truck (Hall truck) was...