Northern Pacific Railway Company v. Everett

• Decision Date: 24 April 1956
• Docket Number: No. 14795.,14795.
• Citation: 232 F.2d 488
• Parties: NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. Ernest EVERETT, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

232 F.2d 488 (1956)

NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. Ernest EVERETT, Appellee.

No. 14795.

United States Court of Appeals Ninth Circuit.

April 24, 1956.

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McKevitt, Snyder & Thomas, Spokane, Wash., for appellant.

R. Max Etter, Ellsworth I. Connelly, Spokane, Wash., for appellee.

Before HEALY and POPE, Circuit Judges, and MATHES, District Judge.

MATHES, District Judge.

This is an appeal from a judgment entered on a verdict for $8,632.76 damages, awarded by a jury for the wrongful death of appellee's sixteen-year-old daughter. Federal jurisdiction rests on diversity of citizenship. 28 U.S.C. § 1332.

The death of appellee's daughter was admittedly caused by injuries sustained in a crossing collision between a 1940 Dodge panel truck which she had been driving and one of appellant's trains. The collision occurred in mid-afternoon on a clear, dry day, at a point approximately 5 miles east of Ellensberg, Washington, where a country road running in a general northerly-southerly direction crosses appellant's tracks running in a general easterly-westerly direction.

The uncontradicted testimony discloses: that shortly prior to the collision appellee's daughter was driving the panel truck along the country road in a northerly direction, approaching the crossing at a speed of approximately ten miles per hour; that as the truck neared the roadbed, it slowed down or stopped, appeared to "buck up" onto the tracks, and stalled directly in the path of the west-bound train; that just before the impact the engineer saw the girl get out of the truck and take a few steps to the west, away from the tracks, in what appeared to be an unsuccessful attempt to reach a place of safety.

The case was submitted to the jury on three specifications of alleged negligence: (1) that on approaching the crossing appellant's engineer failed to sound an appropriate warning whistle or bell, as required by state statute; (2) that appellant negligently failed to maintain a safe roadway leading up to the tracks; and (3) that appellant's engineer negligently failed to stop the train or slacken speed after the truck stalled on the tracks.

The claimed grounds for reversal advanced by appellant are: that there was insufficient evidence to sustain a finding of any negligence on the part of appellant; that there was insufficient evidence to warrant submission of the last-clear-chance doctrine to the jury; that both appellee and appellee's daughter were guilty of contributory negligence barring recovery; and that the verdict is excessive.

Looking to the substantive law of the State of Washington, which rules this case, Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188; cf. Guaranty Trust Co. of N. Y. v. York, 1945, 326 U.S. 99, 108-109, 65 S.Ct. 1464, 89 L.Ed. 2079, appellant's contentions will be discussed in the order stated.

The evidence is conflicting as to the time when a warning whistle was sounded. Washington law requires that "every engineer driving a locomotive on any railway * * * shall ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least 80 rods 1,323 feet from any place where such railway crosses a traveled road or street * * and continue the ringing of such bell or sounding of such whistle until such locomotive has crossed such road or street * * *." R.C.W. § 81.48.010.

Both engineer and fireman testified that two long blasts of the whistle were sounded as the train approached the railroad whistlepost, 1,323 feet east of the crossing, and that several subsequent blasts of the whistle were sounded as the train proceeded toward the crossing.

This testimony, if believed, would leave no question but that the train sounded the warning required by statute. However two disinterested witnesses, John and Lawrence O'Neil, who were working in a nearby field, testified that they didn't hear the train sound a warning whistle until it was about 500 or 600 feet from the crossing.

The jury could well have believed the O'Neils rather than the engineer and the fireman, and so could have found that had the whistle been blown at the distance from the crossing required by law, the girl would have had sufficient warning to permit her to flee the vehicle to safety. Hence the jury might reasonably have concluded that negligent failure to sound a timely whistle was a proximate cause of death.

Against this, it is urged that appellee was bound by the testimony of the engineer, since it was appellee who called him as a witness and elicited the engineer's testimony that the whistle was sounded as the statute requires.

Originally, the engineer had been joined as a co-defendant with appellant railroad, a Wisconsin corporation. But it later appeared that, like appellee, the engineer was a citizen of Washington, and he was voluntarily dismissed as a defendant in the action, presumably to maintain the diversity of citizenship requisite to federal jurisdiction. 28 U.S. C. § 1332; Horn v. Lockhart, 1873, 17 Wall. 570, 579, 84 U.S. 570, 579, 21 L.Ed. 657.

When appellee called the engineer as an adverse witness, the trial judge ruled that he was neither an adverse party nor an adverse witness within the meaning of Rule 43(b). Fed.R.Civ.Proc. Rule 43(b), 28 U.S.C.A. From this ruling, appellant reasons that the engineer was appellee's witness, and so that appellee was bound absolutely by the engineer's testimony.

No authority is cited in support of this contention. The rule that a party is morally bound by the statements of his own witness has been termed primitive and is no longer generally followed. See 3 Wigmore, Evidence, § 897 (3d ed. 1940).

Although Washington law, generally speaking, prohibits impeachment of one's own witness, State v. Thorne, 1953, 43 Wash.2d 47, 260 P.2d 331; State v. Swan, 1946, 25 Wash.2d 319, 171 P.2d 222; State v. Bossio, 1925, 136 Wash. 232, 239 P. 553, it is clear that appellee here made no attempt to impeach the engineer. Instead, appellee called two other witnesses whose testimony in regard to the sounding of the warning whistle differed from that of the engineer.

Hence, the engineer was contradicted, not impeached; and the doctrine, grounded in the common law, that even one's own witness may always be contradicted is the rule followed today. See Wigmore, op. cit. supra, §§ 907, 908.

As explained in Zumwalt v. Gardner, 8 Cir., 1947, 160 F.2d 298: "The engineer whom plaintiff was compelled to call as his witness was in the employ of the defendant and while plaintiff because of having called him, could not directly impeach him, he was not necessarily bound by his testimony. He could have offered testimony to contradict him." 160 F.2d at page 302.

Concerning the second specification of negligence, that appellant failed to maintain a safe crossing approach up to the tracks, it is said "there is an utter absence of evidence that this condition caused the truck to stall."

To the contrary, appellee himself testified that he took a measurement of the claimed defect in the roadway and found there was a jump-up of about five inches from the roadbed to the top of some planking laid across the roadway close to the south rail; and to this was added without objection his opinion and argument that one had to shift down and apply additional acceleration to get over this hump, for there was "a very good chance of stalling your car if you didn't."

Furthermore, witness Lawrence O'Neil testified that when driving north over the crossing he customarily turned to the left hand side of the roadway to avoid the bump caused by the gap between the planking and the roadbed.

In addition, both engineer and fireman testified that appellee's slowly-moving truck appeared to "buck up" onto the crossing and stop, thus providing foundation for the rational inference that the vehicle stalled when the wheels hit the planking. Finally, a photograph was in evidence, said to depict fairly the state of the crossing at the time of the collision.

We conclude there was ample evidence to sustain a finding that the railroad negligently failed to maintain at the crossing a proper and safe roadway leading up the south rail; and a further finding as well that this negligent omission was a proximate cause of the death of appellee's daughter.

As to the third specification, that appellant negligently failed to stop the train or slacken its speed after the truck stalled on the tracks, the engineer testified in effect that when he first saw the truck approach the crossing he made a service, as distinguished from an emergency, application of his brakes, and that when he observed the truck momentarily stop or slow down before reaching the tracks, he released the brakes, but as he released the braking the truck "bucked" onto the tracks, and he immediately thereafter applied full emergency braking to the train, failing to stop in time to avoid crashing into the stalled truck.

But the engineer's testimony on this subject does not stand alone. Indeed, appellant introduced evidence casting doubt upon the accuracy of some of the engineer's observations.

This evidence consisted of a speed tape, a virtually fool-proof mechanical device which registers the speed of a train at each interval of distance along the run. From markings on this tape the speed of the train at any given spot can be computed; also the points at which braking was applied and deceleration occurred.

Appellant qualified an expert witness who described the operation of the speed tape, and reconstructed for the jury the operation and various speeds of the train on the run to the point where it was stopped after the collision. The speed tape showed significantly that there had been a service application of the brakes as the engineer had testified, but that the brakes were released 2,640 feet, or about one-half mile, from the crossing.

It was at this point, the engineer testified,...