Mouso v. Bellingham & N. Ry. Co.

• Decision Date: 02 April 1919
• Docket Number: 15117.
• Citation: 106 Wash. 299,179 P. 848
• Parties: MOUSO v. BELLINGHAM & N. RY. CO.
• Court: Washington Supreme Court

179 P. 848

106 Wash. 299

MOUSO v. BELLINGHAM & N. RY. CO.

No. 15117.

Supreme Court of Washington

April 2, 1919

Department 1.

Appeal from Superior Court, Whatcom County; Wm. H. Pemberton, Judge.

Action by F. J. Mouso against the Bellingham & Northern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss action.

Geo. W Korte, of Seattle, and Curtis E. Abrams, of Bellingham, for appellant.

Sather & Livesey, of Bellingham, for respondent.

TOLMAN J.

This action was brought to recover for damages to an automobile truck, occasioned by a collision between the truck and a switch train then being operated by appellant. The facts as shown at the trial below are substantially as follows:

The collision occurred at about 2:30 p. m. on December 18, 1917 at the intersection of Chestnut street with appellant's main line spur track in the city of Bellingham. The truck was being operated by an experienced truck driver, fully familiar with all of the surrounding conditions, who had driven a truck across this particular track ten or a dozen times a day for some time previous to the accident. At the time in question, the driver had driven along C street to its intersection with Chestnut street, and then because the planking on Chestnut street was but 16 feet wide, and turning the truck thereon was difficult, he proceeded to back the truck down Chestnut street toward his loading point, which was some 135 feet beyond the railroad crossing. The driver testified that he was thus moving at a speed of about 3 to 3 1/2 miles per hour; that he constantly looked in the direction from whence the train came, but saw and heard nothing of it; that, because of a building which obstructed his view, he could see only a distance which he estimated at 25 to 30 feet down the track in the direction from which the train came; that, as he approached the track upon which the train was operating he saw a box car shoot out from the curve; that he immediately applied the brakes, and could have stopped the truck instantly, but that it was raining and the ground was wet and slippery; that the truck skidded onto the track, and, before he could reverse his engine, the car struck the truck, pushing it a distance of some 25 feet against a pile of timbers and there crushing it. The truck projected to the rear of the driver's seat a distance of 14 feet, and the undisputed evidence of a civil engineer who made actual measurements is, to the effect, that the driver, at a distance of 25 feet from the first rail of the track upon which the train was moving, could see past the obstructing building and along the track for a distance of 77.9 feet; at 20 feet he had an unobstructed view for a distance of 99 feet; and at 15 feet the view was clear for a distance of 161.7 feet. The train was made up of an empty box car, 40 feet in length, ahead of the engine as it approached the crossing, the engine, tender, and three loaded oil tank cars, in the order named, and was moving without working steam, at a speed of 4 or 5 miles an hour. The engineer from his side of the cab could not see the approaching truck because of the box car ahead, on top of which a brakeman was stationed. When the front end of the box car was from 60 to 80 feet from the crossing, the approaching truck was seen by the brakeman and the fireman, both of whom gave the engineer a signal to stop; and the brakeman also shouted to attract the attention of the truck driver, and continued to signal and shout until the collision occurred. The engineer, immediately on receipt of the signal, turned on the sand and the emergency brakes, but because of the slippery condition of the rails, and the surge forward of the 240,000 pounds of oil in the tank cars, the wheels on the engine and tender slipped or slid, the sand did not take effect, and the train could not be brought to a stop until the truck was crushed against the timber pile as before stated. It is admitted that the air was not coupled up on the train, and the evidence is undisputed that in switching...