Ray v. Cyr

• Decision Date: 09 February 1977
• Docket Number: 1624-III,Nos. 1623-II,s. 1623-II
• Parties: Rick A. RAY and Patricia A. Ray, husband and wife, Respondents, v. Walter L. CYR and Ruth Cyr, husband and wife and Beverly J. Cyr, a minor, Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent. Darrell KLUTH and Dorothy Kluth, husband and wife, Respondents, v. Walter L. CYR and Ruth Cyr, husband and wife, and Beverly J. Cyr, a minor, Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent.
• Court: Washington Court of Appeals

Page 825

17 Wn.App. 825

565 P.2d 817

Rick A. RAY and Patricia A. Ray, husband and wife, Respondents, v. Walter L. CYR and Ruth Cyr, husband and wife and Beverly J.

Cyr, a minor, Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent.

Darrell KLUTH and Dorothy Kluth, husband and wife, Respondents, v. Walter L. CYR and Ruth Cyr, husband and wife, and Beverly J.

Cyr, a minor, Appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Respondent.

Nos. 1623-III, 1624-III.

Court of Appeals of Washington, Division 3.

Feb. 9, 1977.

As Corrected June 17, 1977.

Nashem, Prediletto, Brooks, Schussler & Halpin, Don W. Schussler, Yakima, for appellant Cyr.

Hamblen, Gilbert & Brooke, P. S., Wm. F. Nielsen, Spokane, for respondent U. P. Railroad.

Perry J. Robinson, Yakima, for respondent Ray.

Hovis, Cockrill & Roy, Pat R. Cockrill, Yakima, for respondent Kluth.

McINTURFF, Chief Judge.

Beverly A. Cyr, a minor, and her parents, appeal from an adverse summary judgment finding Beverly A. Cyr negligent as a matter of law in a rear-end collision, and finding the Union Pacific Railroad, a third-party defendant, free of negligence in the same collision. We affirm.

We are asked on this appeal to review the granting of summary judgment, upon motion by all parties to the trial court. The court, in Ciminski v. Finn Corp., Inc., 13 Wash.App. 815, 537 P.2d 850 (1975), at page 816, 537 P.2d at page 852, states:

A summary judgment is properly granted if the pleadings, affidavits, depositions and admissions before the trial court show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. For summary judgment purposes, we are required, as was the trial court, to view the evidence and all reasonable inferences therefrom in a light most favorable to the nonmoving party and most strongly against the movant. The motion may be granted only if reasonable men could reach but one conclusion from this evidence.

We first review the material facts of the case. Beverly Cyr had been following a car driven by Rick Ray for several blocks. The cars were travelling at 25 m. p. h. in the center lane of B Street, a three-lane, one-way street in Yakima, Washington. The day was sunny, traffic moderate, and the pavement dry. As he approached a railroad crossing, Mr. Ray first heard and then saw a Union Pacific switch engine appear at the edge of the street. At this time his vehicle was 30 to 40 feet from the first of three railroad tracks comprising the crossing. According to Mr. Ray, he stopped his vehicle 10 feet from the first track, and 20 feet from the center track occupied by the switch engine.

The switch engine continued to move at walking speed, about 2 to 4 m. p. h., as it entered and proceeded across B Street. After an appreciable lapse of 3 to 6 seconds allowing the switch engine to move to the center of B Street, there was a squealing of tires as the following vehicle, driven by Beverly Cyr, struck Mr. Ray. This statement of events is related in the depositions of Ronald D. Jennings, train conductor, James G. Themelis, train engineer, and Mr. Ray.

Material facts in the deposition of Beverly Cyr are largely in agreement with this statement of events. Miss Cyr has been following the lead vehicle at a safe distance, approximately 40 feet or 21/2 car lengths. She was entirely familiar with B Street and this railroad crossing, having driven the route 5 days a week for one year to school. As the cars approached the B Street crossing, Miss Cyr "glanced" in her rear-view mirror. She did not slow her vehicle, had not seen the train, and heard no signal. As she again looked forward, the switch engine was in the crossing, moving slowly. Unfortunately for Miss Cyr, she was already upon the lead vehicle stopped at the crossing. She had insufficient time to stop her vehicle before collision, even with hard braking.

According to Miss Cyr, vehicles travelling to her left and right made "regular" stops at the crossing, without skidding or apparent difficulty. Mr. Ray had made a similar stop, "fairly rapid", but without locking his brakes or squealing his tires. The deposition of his passenger, Dorothy Kluth, coincides with this estimation, wherein Mrs. Kluth states she bumped her head and spilled her pop as a result of the stop. Mrs. Kluth was sitting forward in her seat, without a seatbelt, and was "busy talking" to her sister, Mrs. Ray, at the time.

Upon these facts presented by the parties to the trial court in support of summary judgment, we conclude there exists no substantial question as to any material fact upon which reasonable minds could differ. A Union Pacific switch engine entered the B Street crossing in a safe, prudent, and reasonable manner, creating no emergency situation for approaching drivers. That she lead vehicle, driven by Mr. Ray, came to a...