Rininger v. Puget Sound Elec. Ry.
| Decision Date | 15 February 1915 |
| Docket Number | 2450. |
| Citation | 220 F. 419 |
| Parties | RININGER et al. v. PUGET SOUND ELECTRIC RY. et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. H A. Hastings and L. B. Stedman, both of Seattle, Wash., for plaintiffs in error.
James B. Howe and Hugh A. Tait, both of Seattle, Wash., for defendants in error.
Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.
This action was brought by the plaintiffs in error against the defendants in error to recover damages resulting to them from the death of the husband of Nellie M. and the father of Helen Dorothy Rininger, which was in the complaint alleged to have been caused by the joint negligence of the defendants in error. The deceased Rininger was killed by a car of the defendant electric railway-- an interurban road-- colliding with an automobile in which he was riding. Both companies were represented in the court below by the same counsel.
At the trial, upon the conclusion of all of the evidence on the part of the plaintiffs, the defendant Puget Sound Traction, Light & Power Company moved the court for judgment in its favor 'on the ground that it had been in no way connected with the ownership or operation or management or control of the interurban railroad, and that no negligence on its part had been shown. ' The record shows that that motion was granted as to that defendant without objection, and it was not named in the writ of error or citation, or in any way made a party to the proceedings taken by the plaintiffs in error to review the judgment which was subsequently entered by the court below in favor of the electric railway company in consequence of which the latter company has moved for the dismissal of the writ of error.
To meet that motion the plaintiffs in error asked leave to amend the writ of error and the citation issued in the cause by inserting the name of the traction, light and power company as a codefendant in error with the electric railway company, and also for permission to substitute for the original appeal bond a new and amended bond to conform to such amended writ of error and citation, on the ground that the traction, light and power company was inadvertently omitted from the original writ of error and citation. The latter motion is granted, and the former one denied. Section 1005, U.S. Compiled Statutes 1901, p. 714; T. S. Teel v. Chesapeake & O. Ry. Co. of Virginia, 204 F. 914, 123 C.C.A. 210; Gilbert v. Hopkins, 198 F. 849, 117 C.C.A. 491; Walton v. Marietta Chair Co., 157 U.S. 342, 15 Sup.Ct. 626, 39 L.Ed. 725; Estis v. Trabue, 128 U.S. 225, 9 Sup.Ct. 58, 32 L.Ed. 437.
After the elimination of the traction, light and power company the trial proceeded against the electric company, both parties thereto introducing much evidence, upon the conclusion of all of which the defendant company moved the court for a directed verdict in its favor, which motion was granted, and such verdict accordingly rendered by the jury. That action of the trial court is the matter for consideration here upon the merits. In granting that motion the court based its ruling mainly upon the decision of this court in the case of Northern Pacific Ry. Co. v. Alderson, 199 F. 735, 118 C.C.A. 173, and the decisions of the Circuit Court of Appeals of the Eighth Circuit in the cases of Chicago & N.W. Ry. Co. v. Andrews, 130 F. 65, 64 C.C.A. 399, and Chicago, M. & St. P. Ry. Co. v. Bennett, 181 F. 799, 104 C.C.A. 309. The evidence in each of those cases was very different from that in the present case.
This accident occurred at the crossing by the electric company's tracks of a macadamized highway at a place called Riverton, some miles south of the city of Seattle-- the interurban electric line being that connecting Seattle with Tacoma. The plaintiffs in the case introduced evidence tending to show that over the highway at the crossing in question there is and was at the time a very large amount of travel, and also evidence going to show that about two miles southerly of Seattle the roadbed of the electric company, which is double-tracked beyond Riverton, crosses the Duwamish river, then passes a point called Quarry, then a little further south a place called Allentown, and that about 1,200 feet still southerly of Allentown is the town or settlement of Riverton. From Quarry to Riverton the defendant company's tracks are constructed on a curve and at the foot of a high bluff, in places 44 feet high, until it approaches within 120 feet of the highway at Riverton, when it gradually recedes and disappears there. About 120 feet west of the west rail at Riverton, and about 17 feet north of the center of the highway, the defendant company had erected an iron post about 12 feet high upon which is an electric alarm gong about 12 inches in diameter, and on the top of which post are a series of red electric lights and a large railroad crossing sign; 1220 feet north of the crossing and on the company's west rail is an electric mechanism so constructed that a south-bound car cuts in the current and ordinarily sets the gong to ringing and lights the red electric lamps, for the purpose of warning travelers on the highway of the approach of a south-bound car or train. About 20 feet south of the crossing is another electric mechanism that cuts out the current from the gong and lights, causing the gong to cease ringing and the lights to be extinguished. A similar mechanism is constructed on the east rail of the company in inverse position, being operated similarly by north-bound cars. There was evidence given tending to show that under ordinary conditions the gong, when in operation, could be heard from 700 to 800 feet; one witness testifying that on a clear day it could be heard from 1,200 to 1,500 feet. There was testimony also tending to show that the curvature of the bank of the bluff was such as to deflect the sounds and warnings of south-bound cars toward the east, and that in consequence it was and is difficult for one at or near the Riverton crossing to hear the rumble or sounds of a south-bound car until it was practically at the crossing. There was also evidence tending to show that from a point 300 feet west of the crossing the highway descends towards it at about a grade of 4 per cent. until it reaches within 15 or 20 feet of the track of the railway company, when it becomes level until the railway track is crossed, and that from such point to the crossing a south-bound car following the west track around the curve could not be seen after it leaves Allentown until within 40 or 50 feet of the crossing.
At the time of the accident the deceased, who was a physician, was being driven by his chauffeur, and was sitting on the front seat with him, there being two ladies on the rear seat. They were approaching the crossing from the west, and consequently going towards Seattle. There was undoubtedly testimony on the part of the defendant company tending to show that the car that killed the deceased was not approaching the crossing at an immoderate speed, and that the alarm gong there was ringing, and that the gong upon the car was ringing, and that the deceased was being driven towards the crossing at an immoderate speed-- some of the witnesses stating it as from 30 to 35 miles an hour-- and consequently tending to show that the deceased was guilty of contributory negligence. And the court below so held, in effect, in taking the case from the jury and directing a verdict for the defendant. But in view of the evidence on behalf of the plaintiffs we are clearly of the opinion that the court below was in that regard in error.
It will be sufficient to cite a little only of the testimony given on behalf of the plaintiffs. The testimony of the chauffeur-- Kent Brodnix-- is in part as follows:
'My name is Kent Brodnix, and am an automobile driver and repair man, having followed this business seven years, and was following this business in July, 1912, and was then employed by Dr. Rininger, the deceased mentioned in this case. Dr. Rininger at that time owned a Sterns, and I had been driving it a few days over three months prior to July 25, 1912. To a certain extent at that time I was familiar with this crossing known as the Riverton crossing. During the afternoon of July 25, 1912, Dr. Rininger, the nurse, Miss Davis, and the doctor's sister, Miss Rininger, and myself had been to Kent. We were on our way back to Seattle, and approached this crossing a few minutes after 4 in the afternoon. As I was coming along as usual, and when I got to the top of this grade, possibly 300 feet back from the crossing, as I always had done before, I released the engine from the machine and started coasting down this grade, using the brake to control the machine, and I got down almost to the store, and I looked to the south to see if there were any trains approaching from that way and then looked towards the north, and I could not see any there. We were going about 15 or 16 miles an hour, not to exceed that. As I looked to the north, I did not see any car, and I let the machine come on down, and I looked to the south again between the freight house and the store, and then turned and looked to the north again, and the car was only a short distance from the crossing. I mean by this the Interurban car. Before this I had made an effort to listen to ascertain whether there was any car approaching. I heard no sound at all of any approaching car. I did not hear any whistle or the ringing of any bell on the car. Q. Do you know whether the doctor himself made any effort to ascertain if there was a car...
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