Reines v. Chicago, M., St. P. & P.R. Co., 26931.
Citation | 195 Wash. 146,80 P.2d 406 |
Decision Date | 06 June 1938 |
Docket Number | 26931. |
Court | United States State Supreme Court of Washington |
Parties | REINES v. CHICAGO, M., ST. P. & P. R. CO. et al. |
Department 2.
Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.
Action by Borghild Reines, as administratrix of the estate of John Reines, deceased, against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and others for the death of John Reines, who was killed when an automobile in which he was riding as a guest ran into the side of a freight train moving over a highway grade crossing. From a judgment of dismissal plaintiff appeals.
Affirmed.
Scott, Langhorne & McGavick and Clarence E Layton, all of Tacoma, for appellant.
A. N Whitlock, Thos. H. Maguire, and A. J. Laughon, all of Seattle, and Robt. B. Abel, of Tacoma, for respondents.
Appellant, as administratrix, brought this action to recover damages for the alleged wrongful death of her hubsand, John Reines. Deceased was killed when an automobile in which he was riding as a guest ran into the side of a freight train as the train was moving over a highway grade crossing. Appellant joined as defendants the railroad company, its trustees, under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, and the conductor of the train. The trial court sustained a demurrer to the amended complaint on the ground that the complaint did not state a cause of action. Upon plaintiff's election to stand upon her pleadings, the trial court entered a judgment of dismissal.
The material facts set out in the amended complaint are as follows: A track owned and maintained by the railroad company crosses, at grade, the Lincoln Highway at a point one-half mile east of Midland, Pierce County. The highway is a paved state highway which bears a considerable amount of traffic. At about 11:20 p. m., on November 7, 1936, the railroad company was slowly moving a long freight train, in charge of respondent Hendricks as conductor, over this grade crossing. At the same time deceased was riding on the highway in a Ford car driven by Marvin Olson. Olson drove the car into the side of the moving train with the result that Mr. Reines, who was Olson's guest, was killed. We quote the pivotal paragraph of the complaint: 'That the collision between the freight cars of said defendants' train and the automobile in which plaintiff's deceased was riding, was due solely to the carelessness and negligence of the defendants in the following particulars, to-wit:
The manner in which Olson was driving is not alleged. This does not render the complaint defective, Hart v. Clapp, 185 Wash. 362, 54 P.2d 1012; but it leaves without substance the allegation that the crossing was known by the defendants to be a dangerous crossing 'by reason of the fact that prior to said collision there had been other such collisions,' since for aught that is alleged they may have been caused by the fault of the drivers involved.
Nor do we think that the allegation that the defendants knew the crossing was dangerous, because they had been urged by representative of the state highway patrol to install signal lights and warning devices at the crossing, adds anything to the complaint. It may well be doubted whether the opinion of representatives of the state highway patrol would be received in evidence to prove that the crossing was dangerous. Furthermore, it is not to be supposed that anyone would deny that the crossing was dangerous. The statute law of this state relating to grade crossings has for many years been based upon the theory that all grade crossings are dangerous and administrative commissions have existed for many years with extensive powers of regulation. As early as 1909 an act was passed providing that all railroads, or extensions thereof thereafter constructed, should cross all existing railroads and highways by passing under or over, unless authorized to do otherwise by consent of the railroad commission. Ch. 162, p. 618, Laws of 1909. Subsequent legislation provided that towns and counties or the state highway commissioner might, upon allegations that the public safety required it, petition for the elimination of existing grade crossings and a substitution of under or over crossings, and provided for the machinery for carrying that purpose into effect, including the right of eminent domain. Ch. 30, p. 74, Laws of 1913; Ch. 138, p. 494, Laws of 1921.
Ever since 1909, the railroad commission, or the successor to its powers and duties, has had the power and duty to require any railroad to install and maintain proper signals, warnings, or other devices to warn and protect the public at any highway crossing. Rem.Rev.Stat. § 10513. Additional and later legislation (1931) provides that railroads must install the sawbuck crossing signs, with the lettering 'Railroad Crossing,' at all grade crossings and 'additional safety devices and signs may be installed at any subsequent time, when required by the department of public works.' Rem.Rev.Stat. § 6308-2, subsec. (b).
There is no allegation in the complaint that the statutory railroad crossing signs were not in place, nor that the proper state authorities had ordered the installation or use of additional signals or safety devices. There is, therefore, no question presented as to negligence per se.
In Ullrich v. Columbia & Cowlitz R. Co., 189 Wash. 668, 66 P.2d 853, it was said (page 855): '* * * When a train actually occupies the crossing, that in itself supersedes all other warnings and gives actual notice by its own presence. * * *'
In spite of the fact that this case was decided as late as April 3, 1937, we have, in view of the fact that two cases of this type have been presented for decision during this term of court, made an extended research of the authorities covering cases where the plaintiff has collided with a train occupying a grade crossing. In this research, we believe we have examined all such cases which have been decided by the courts of other states or by the federal courts during the last nine years, and a few additional cases which, from frequent citation therein, seem to be leading. In seventeen of the seventy-five cases examined, it was held that the questions presented were for the jury. In all the others, it was held that a person so unfortunate as to drive or to be...
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