Peterson v. Great Northern Ry. Co.

• Decision Date: 08 February 1932
• Docket Number: 23301.
• Citation: 166 Wash. 538,7 P.2d 963
• Court: Washington Supreme Court
• Parties: PETERSON v. GREAT NORTHERN RY. CO. et al.

7 P.2d 963

166 Wash. 538

PETERSON v. GREAT NORTHERN RY. CO. et al.

No. 23301.

Supreme Court of Washington

February 8, 1932

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Ida Peterson, administratrix of the estate of William E Peterson, deceased, against the Great Northern Railway Company and another. From a judgment dismissing the action plaintiff appeals.

Reversed and remanded, with directions.

Vanderveer Beardslee & Bassett, of Seattle, and Clarence J. Coleman, of Everett, for appellant.

Thomas Balmer, Edwin C. Matthias, Charles S. Albert, and J. Speed Smith, all of Seattle, for respondents.

MAIN, J.

This action was brought to recover damages for wrongful death. The plaintiff is the administratrix of the estate of William E Peterson, deceased, and brings this action on behalf of herself as his widow. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff and against the defendants, Great Northern Railway Company and John Imberg, in the sum of $35,000. The defendants moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The motion for judgment notwithstanding the verdict was sustained. The motion for new trial was not passed upon. From the judgment entered dismissing the action, the plaintiff appeals.

The facts essential to be stated, upon which the appellant's case was based, are these: The accident out of which the litigation arose happened at about 5 o'clock p. m., October 3, 1929, in the town of Monroe, in Snohomish county, where one of the streets of that town crosses the main line track of the Great Northern Railway Company. The railway track extends east and west. The street may be said to extend north and south, though this is not strictly accurate. Approximately 260 feet west of this intersection there was a heavy metal standpipe, used to supply the railway company's engines with water, which was about 9 1/2 feet from the south rail of the main line track. A railway train, operated by John Imberg as engineer and Lyman Durand as fireman, which consisted of the engine, a baggage car, two coaches, and a buffet car, was proceeding west on the main line track. Peterson was proceeding north on a street which crossed the track in a Ford truck or 'station wagon,' as one witness called it. This truck had a seat in front, and in the back was space for the carrying of milk and other articles. Peterson was driving and in the seat on the right-hand side there rode with him a boy, thirteen years of age. As the truck approached the track, other cars had stopped to permit the train to go by. The driver of one of the other cars sounded his horn two or three times to attract Peterson's attention and thus prevent him from attempting to cross in front of theapproaching train, but Peterson drove straight onto the track, and, when he did so, the truck was struck by the engine, lifted onto the pilot, and there held in place by what is referred to as the drawhead of the engine which passed through the right-hand side of the truck. The truck rested about level on the pilot, with the probability that the left side was a little lower than the right, and the rear end a little lower than the front. No part of the automobile was touching the ground or the railway tracks. After the impact, Peterson and the boy were lying in the back part of the truck, with their heads to the back and their feet to the front. In this condition the automobile was carried until it reached the standpipe above referred to, with which the rear end collided and caused the left side of the truck to lower. At a point about 130 or 140 feet west of the standpipe, Peterson and the boy rolled out of the truck, Peterson first and the boy following. After they rolled out, the train proceeded something like a hundred feet Before it was stopped. After the train was stopped, it was backed up a few feet, and Peterson and the boy were taken out from under the wreckage of the truck. They boy had a broken leg and some cuts and bruises, but beyond this was not seriously injured. He did not, however, remember anything that happened after the railway engine struck the side of the truck. Peterson was badly injured in one leg, one arm, his head and chest, and died on the way to the hospital.

One witness, who did not see the engine strike the truck, but saw the situation soon after, testified: 'That he heard the crash, looked out of the window, saw the milk truck on the pilot and cans rolling on the ground. That the truck looked just like it had been picked up; it was sitting up on an even keel, almost level sidewise, as far as I could see. When I got to the end of the street, I heard another crash, the rear end of the truck had hit the standpipe. When I got down to where the train had stopped, they had reversed the engine and were backing up, about ten feet, maybe more. The bodies were lying there, between the rails, Mr. Peterson and the boy. The truck was stuck on the pilot, the bumper having swung into the right door and was hooked in. When the rear end of the truck hit the standpipe it kind of tucked it in there. Until the truck hit the standpipe, it was riding up. The train stopped near the light post that had been removed. The distance from the standpipe to where the train stopped was approximately 270 feet. That the truck was riding clear when it was resting on the pilot. * * * That the train came to a stop very gradually, just as if it was going to stop at the station.'

Another witness testified that: 'After the bodies had rolled out into the track, they hung onto the track, hung along as near as he could judge twenty or thirty feet right on the rail and after they had gone twenty or thirty feet, they began to be tucked under the wreck; when the train stopped just part of the body was under the wreckage. That the train backed once, three or four feet, something like that. That Mr. Peterson's body was inside; that their heads were under the wreckage, but their bodies were not under; that they were unconscious.'

The funeral director who took charge of Peterson's body immediately after it was taken from the wreck as to the extent of the injuries testified: 'HE WAS VERY BADLY BRUISED AND MANGLED AND seVeral deep cuts in his face and under his eyes, one eye was nearly out and one arm was practically cut off; it was hanging by the cords and one leg was absolutely mashed. When he removed his clothing he had to be very careful not to pull his leg off with his clothing. There was a big hole in the back, way through to the gray matter in the skull and the gray matter ran out on the operating table; his chest was crushed so badly through there that he could not feel any bones in there at all; it was all just a mass.'

The engineer, at the time of the collision, was riding on the right-hand side of the engine, and the brakeman on the left. When the brakeman observed that Peterson was driving the truck in front of the train, he called to the engineer, Imberg, in a loud voice: 'That will do,' which means an emergency stop. The stating at Monroe was a short distance to the west of where the tain came to a stop. The witnesses for the appellant testified that the train was moving at from twenty to twenty-five miles an hour at the time of the collision. The expert witnesses called by the appellant testified that a train, such as the one involved, moving at that speed, could be stopped in 200 feet or less. The evidence offered by the respondents was in conflict in material particulars with that offered by the apellant, but we are not here concerned with this disputed testimony since the cause was tried to the jury.

The first question is whether the evidence was such as to sustain a finding of the...