Rossier v. Payne

• Decision Date: 17 May 1923
• Docket Number: 17104.
• Citation: 215 P. 366,125 Wash. 155
• Court: Washington Supreme Court
• Parties: ROSSIER v. PAYNE, Director General of Railroads.

215 P. 366

125 Wash. 155

ROSSIER v. PAYNE, Director General of Railroads.

No. 17104.

Supreme Court of Washington

May 17, 1923

Department 2.

Appeal from Superior Court, Yakima County; Allen S. Davis and V. O Nichoson, Judges.

Action by S. A. Rossier, as administrator of the estate of Marvin A Mason, deceased, against John Barton Payne, Director General. Judgment for defendant, and plaintiff appeals. Affirmed.

McMaster Hall & Schaefer, of Vancouver, E. C. Ward and Geo. A. Brodie both of Goldendale, and McAulay & Meigs, of Yakima, for appellant.

Geo. T. Reid and L. B. DaPonte, both of Seattle, J. W. Quick, of Tacoma, and Rigg & Venables and C. P. Borberg, all of Yakima, for respondent.

FULLERTON, J.

This is an action to recover demages for the death of Marvin A Mason, killed in a railway crossing accident June 16, 1918, in Yakima county. A trial before a jury in the court below resulted in a verdict for the defendant, and a judgment was entered accordingly, from which the plaintiff has appealed.

The facts upon which the action was based follow: For many years prior to the time of the accident, there had existed a road running from the farm occupied by Mason in a southerly directon to a point about 60 feet from the main line tracks of the Northern Pacific Railway Company; thence in a westerly direction, practically parallel to the tracks, for a distance of some 200 feet; and thence southerly across the tracks. The approach to the tracks after making the last turn was up a 14 per cent. grade. The railroad right of way was fenced, but at the point where the road entered the right of way there was a gate. At the time of the accident, Mason was driving an automobile along the road in the direction of a station of the railway company. The automobile was struck while on the crossing by a passenger train traveling westward from the station mentioned. Its speed was about 50 miles per hour, the usual speed of passenger trains at that place. Mason's father-in-law was riding in the automobile with him, and both were killed.

Two distinct acts of negligence were alleged; First, that the railroad company had permitted brush and trees to grow upon its right of way, thus shutting off the view of the track and approaching trains from those traveling along the road; and, second, that no warning was given of the approaching train, either by bell or whistle.

In addition to returning a general verdict in favor of the defendant, the jury returned answers to special interrogatories as follows:

'(7) Was defendant guilty of any negligence charged in plaintiff's complaint which proximately caused the accident? Answer: Yes.

'(8) If you answer, 'Yes,' to interrogatory 7, then you will answer whether Mr. Mason was guilty of any negligence which proximately contributed to the accident. Answer: Yes.

'(9) If you answer, 'Yes,' to both interrogatories 7 and 8, then you will answer whether Mr. Mason unconsciously placed himself in a position of peril immediately prior to the accident. Answer: He did.

'(10) If you answer, 'Yes,' to interrogatory 9, then you will answer whether the defendant's locomotive engineer by the exercise of reasonable care should have discovered Mr. Mason's peril prior to the accident in time to have prevented the injury. Answer: Yes, he should.'

The first contention of the appellant is that the court below erred in refusing to admit evidence offered by the appellant tending to show that it was the general custom and habit of Mason to stop and look for approaching trains when at the gate, and again to look just before crossing the track. This court has, however, repeatedly held that it is not competent for a party, in order to rebut evidence of negligence on a particular occasion, to show that he is generally careful, cautious, and prudent; and has also held the corollary of the rule, namely, that it is not competent, in order to support a claim of negligence on the particular occasion, to show that the party is habitually careless and negligent. The rule precludes the evidence proffered in this instance. Christensen v. Union Trunk Line, 6 Wash. 75, 32 P. 1018; Carter v. Seattle, 19 Wash. 597, 53 P. 1102; Atherton v. Tacoma R. & Power Co., 30 Wash. 395, 401, 71 P. 39; Kangley v. Rogers, 85 Wash. 250, 147 P. 898; Chilberg v. Parsons, 109 Wash. 90, 186 P. 272.

The appellant next complains of certain instructions given by the court to the jury. These, we think, we need not repeat here at length. It is objected to them that they ignore the doctrine that the duty of the deceased in approaching and crossing the railway track was only to exercise ordinary prudence and care commensurate with the circumstances, and in effect instruct the jury in such a manner as to make the deceased the insurer of his own safety. We cannot, however so read the instructions. The opening sentence of the one to which the criticism is chiefly directed...