Nicol v. Oregon-Washington R. & Navigation Co.

• Decision Date: 26 December 1912
• Citation: 71 Wash. 409,128 P. 628
• Court: Washington Supreme Court
• Parties: NICOL v. OREGON-WASHINGTON R. & NAVIGATION CO.

128 P. 628

71 Wash. 409

NICOL v. OREGON-WASHINGTON R. & NAVIGATION CO.

Supreme Court of Washington

December 26, 1912

Department 1. Appeal from Superior Court, Pierce County; Ernest Card Judge.

Action by John Nicol against the Oregon-Washington Railroad &amp Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bogle, Graves, Merritt & Bogle, of Seattle, and Sullivan & Christian, of Tacoma, for appellant.

Myron C. Cramer, B. S. Grosscup, and W. C. Morrow, all of Tacoma for respondent.

GOSE J.

This is an action for damages against the defendant, a common carrier, for an alleged negligent destruction of plaintiff's automobile at a country crossing. The case was tried to the court. Findings were made in favor of plaintiff, and a judgment was entered thereon, from which the defendant has appealed.

The negligence charged is that, while the respondent was in the act of driving his automobile over the railroad crossing in a public highway, the machine became stalled crosswise of the track, the engine of the machine stopped running, the respondent was unable to start it or to move the machine off the track, and 'the engineer and fireman in charge of defendant's said train saw the plaintiff before the train got to him, and saw his automobile standing upon the crossing in sufficient time to have stopped said train and to have avoided colliding with and destroying plaintiff's automobile.' The appellant joined issue on the charge of negligence, and pleaded that the collision resulted from the negligence of the respondent. The collision occurred about 1 o'clock in the morning.

The court did not find, and the evidence does not show, that the engineer actually saw the machine. The court's findings in this respect are: That, when the respondent found that he could not extricate his machine, he ran north along the track and right of way toward the approaching train, a distance of 650 or 700 feet, lighting matches, waving his arms, and shouting to signal the engineer in charge of the train, and that, had the engineer been keeping a proper lookout ahead, he would have seen the respondent, who while running down the straight track was in plain view of the engineer in the rays of the headlight of the engine for at least 1,000 feet before the engine passed him, and would have seen his signals in time to have stopped the train before striking the machine.

The first point urged is that there is a variance between the pleadings and the evidence, and that the findings are not within the issues. The variance is immaterial. Rem. & Bal. Code, § 1752; Irby v. Phillips, 40 Wash. 618, 82 P. 931; Richardson v. Moore, 30 Wash. 406, 71 P. 18.

The further consideration of the case necessitates a statement of the essential facts. The train which struck the automobile was a passenger train composed of nine cars, and was traveling from Tacoma in a southerly direction at a speed of 35 to 38 miles an hour. The engine was equipped with a standard electric headlight, burning brightly and lighting the track so that an object thereon could be seen on a bright night a distance varyingly estimated by the locomotive engineers at from 1,000 to 1,800 feet. The track has a one-degree curve for a distance of 200 feet immediately north of the crossing where the accident happened. From there northward it runs straight for a distance of 4,800 feet. The respondent says that he ran north towards the approaching train, following the center of the track, for about 500 or 600 feet, striking matches and waving his arms, and that he then stepped to the outside of the track and continued running along it a distance of 100 to 200 feet, giving the same signals, at which point he was passed by the train. The engineer says that he passed him about 500 feet north of the crossing; that he did not see him until the headlight was opposite him; that he then applied his air, but did not apply the emergency brakes; and that he stopped the train in 1,000 feet. The engineer admitted that he knew that the track was crossed at grade by a public highway, at the point where the collision happened. The respondent was returning to Tacoma from the country club, at American Lake, in his machine, the morning of the accident. He was traveling north on the west side of the railroad track. He got on the wrong road, crossed the railroad track and, discovering his mistake, turned and started to recross the track, got off the planking, which was 16 feet wide over the track, and got his machine stalled crosswise of the track near the cattle guards, as before stated. He says that the night was bright, and that the stars were shining, and that all the lights upon his machine were lighted and in good condition. These facts clearly establish his negligence. Moore v. Great Northern Ry. Co., 58 Wash. 1, 107 P. 852, 28 L. R. A. (N. S.) 410. The principal fact in dispute was as to whether the night was clear or foggy. The respondent's witnesses asserted the former to be the fact, whilst the appellant's witnesses insisted that the latter was the fact. The court found that 'the night was clear, there being no fog to any extent or other atmospheric difficulty to interfere with the engineer's view.' We accept the fact as found by the court.

The respondent contends that, conceding his negligence, the negligence had ceased; that appellant owed the duty of keeping a lookout; that, had the engineer exercised reasonable care, he would have seen the respondent and his signals in time to have avoided the collision; and that the appellant is liable under the doctrine of 'last clear chance.' On the other hand, the appellant earnestly insists that it owed no duty to the respondent, except to not willfully injure him or his property after actually discovering his peril. We think the respondent has the correct view. His machine was within the public highway; he was in no sense a trespasser, although without the traveled portion of the road. The appellant knew of the presence of the highway, knew that it crossed the track at grade, and knew that it was traveled by the public. Moreover, it was the duty of the engineer to exercise reasonable care, and had he done so under his own testimony, assuming that the night was clear, he would have seen the respondent and his signals a distance of $1,000 feet or more. This would have given him at least 1,500 feet in which to stop the train, according to his own statement. He testified that he was keeping a lookout ahead, but that the presence of the fog obscured his vision. One of the appellant's witnesses, Mr. Champlain, a locomotive engineer, testified that the engineer could see a man ahead a distance of 1,200 feet on a clear night. In failing to see the respondent and heed his signals, the engineer was clearly guilty of negligence. The act of a man running along a right of way at 1 o'clock in the morning, striking matches and waving his arms, is a circumstance that ought to attract the attention of a prudent engineer, and it was notice that there was danger ahead.

The doctrine of last clear chance is applied perhaps most frequently to cases where the plaintiff's negligence has terminated, and where the defendant thereafter, in the exercise of reasonable care and owing a duty to exercise it, should have discovered the peril in time to have prevented an injury. It has also often been applied where it would be apparent to one in control of a dangerous agency, if exercising reasonable vigilance, that a traveler is unconscious of his danger or so situated as to be incapable of self-protection, and in such cases, if the one controlling the agency could have averted the danger by exercising reasonable care and failed to do so, liability follows. It is based upon the principle that the negligence of the one is remote, and that the negligence of the other is the proximate and efficient cause of the catastrophe; he having the last clear opportunity of preventing it. These views find support in the following cases: Bullock v. Wilmington & W. R. Co., 105 N.C. 180, 10 S.E. 988; Baltimore & O. R. Co. v. Anderson, 85 F. 413, 29 C. C. A. 235; Southern Ry. Co. v. Fisk, 159 F. 373, 86 C. C. A. 373; 3 Elliott on Railroads (2d Ed.) § 1115; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Turnbull v. New Orleans & C. R. Co., 120 F. 783, 57 C. C. A. 151; Inland & Seaboard C. Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Southern Ry. Co. v. Bailey, 110 Va. 833, 67 S.E. 365, 27 L. R. A. (N. S.) 379; Klockenbrink v. St. Louis, etc., R. Co., 81 Mo.App. 351; Bergman v. St. Louis, etc., Ry. Co., 88 Mo. 678, 1 S.W. 384; Lloyd v. St. Louis, etc., Ry. Co., 128 Mo. 595, 29 S.W. 153, 31 S.W. 110.

In the Bullock Case the plaintiff's team, drawing a portable steam engine, had become stalled at the crossing of defendant's road in a public highway and was struck and killed by a passing train. It was held that the defendant was guilty of negligence, if the engineer by the exercise of reasonable care could have...