Sadler v. Northern P. Ry. Co.

• Decision Date: 29 December 1921
• Docket Number: 16740.
• Court: Washington Supreme Court
• Parties: SADLER v. NORTHERN PAC. RY. CO. et al.

203 P. 10

118 Wash. 121

SADLER v. NORTHERN PAC. RY. CO. et al.

No. 16740.

Supreme Court of Washington

December 29, 1921

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Catherine P. Sadler, administratrix of the estate of James Sadler, deceased, against the Northern Pacific Railway Company and another. Judgment for plaintiff. Motions for judgment non obstante veredicto and for a new trial were denied, and defendants appeal. Reversed, and action dismissed.

C. H. Winders, of Seattle, for appellants.

Charles E. Congleton and Geo. F. Hannan, both of Seattle, for respondent.

HOLCOMB J.

This is an action for the alleged wrongful death of James Sadler, who was a guest in an automobile truck operated by Arthur Ball and which was struck by a passenger train operated by appellants, within the city limits of Seattle, at a grade crossing known as Spokane avenue, about 4:15 p. m., June 29 1920.

The deceased was riding on the right-hand and north side of the seat, with the driver and the driver's son, who was in the middle of the seat. The driver, Ball, occupied the left-hand seat.

Spokane avenue runs east and west, and crosses the Northern Pacific main line tracks running north and south at about right angles. The train which collided with the truck was a passenger train leaving the Union Passenger Station in Seattle, and running southerly. The Ball truck was going westerly. From the east of the railroad grade Spokane avenue is built upon tide flats, and for a distance of about a quarter of a mile there was no obstruction of any kind to prevent a view of the railroad tracks to the north for quite a distance east of the crossing. A building about 1,000 feet north of the Spokane avenue crossing, known as the Star Machinery building, is the first building to obstruct the view of the railroad track to one approaching, for several hundred feet, from the east. Horton street is the first street which is opened and traveled to the north of Spokane avenue. The Star Machinery building is constructed adjacent to the south line of Horton street. On the day in question Spokane avenue for quite a distance east of the railroad tracks was rough and in bad condition, the former trestle which had supported the roadway having burned and the right of way consisting at that time of boards laid on a sawdust fill. For about 100 feet the roadway of Spokane avenue went up a slight incline to reach the level of the railroad tracks. About the time of the accident there had been a fire in the sawdust fill on the east side of the railroad tracks, to the north of Spokane avenue, and there were a number of fireman in the vicinity at the time. The fire had been put out, but there was some hose upon the plank roadway, and Captain Boyle, of the fire department, was relaying machines along that part of the roadway, and at the time the Ball truck approached four automobiles had been stopped at distances of from 100 to 150 or 200 feet from the railroad track, he (Captain Boyle) standing about 100 feet east of the track. The first of these machines got over some time before the accident. The second was driven by one Griffiths, the third driven by Ball (the car which was struck), and the fourth driven by one Wright. This witness testified that he saw the train approching when it was back about 1,000 feet from the point of accident, and that there was nothing which would obstruct the vision of any one approaching the track from the east for a minimum distance of at least 1,000 feet.

Ball himself testified that about the time he passed Captain Boyle about 100 feet from the track, or at least 70 feet, he looked in a northerly direction, where he could see 1,000 feet, and saw no train approaching from that direction, and then went forward, and did not make any further observation in that direction; that if he had looked there was nothing to prevent him, and nothing to prevent Sadler, who was on the side nearest the train, from seeing the train for about 1,000 feet. His car was moving at the rate of about 3 miles per hour, and up a slight incline, and could have been stopped almost instantly. Wright, who was driving the automobile immediately following Ball's testified that he looked up and saw the train when it was back 1,000 feet, and did not attempt to cross the track. At that time Ball was back over 50 feet from the point of the accident. Captain Boyle testified that he heard the train whistle, and looked up just after Ball passed him, and the train was then back over 1,000 feet.

The complaint alleges negligence on the part of appellants in four particulars: (1) that the train was operated at an excessive and unlawful rate of speed, in violation of the ordinances of the city of Seattle; (2) that the train crew gave no warning of its approach, either by bell, gong, or whistle; (3) that appellants failed and neglected to keep a proper lookout for trainc; and (4) that appellants failed to keep a watchman at the crossing.

In the instructions the court withdrew from the consideration of the jury the allegations as to negligence in failing to keep a proper lookout, and in failing to have a watchman at the crossing, there being no evidence in support thereof.

The automobile in question was a touring car made over into a truck, with one seat, and no curtains on either side to obstruct the view.

Sadler was a working man, working in the vicinity of the Spokane avenue crossing, and, when Ball had finished taking on some furniture at the plant of a furniture factory in the vicinity of this crossing, Sadler went up to him and asked him for a ride into town in the truck, which was granted. Sadler never owned an automobile, nor operated one, and did not know how to operate one. Ball had never been over this part of Spokane avenue before, and was not familiar with it. There was, however, a cross-arm sign at the crossing showing that it was a railroad crossing, and the tracks were in plain view.

There was testimony that the train consisted of an engine, mail car, and three coaches, and was going at a speed variously estimated at from 35 to 50 miles per hour, and running very smoothly. It must be noted, however, that it make sufficient noise for other persons in that vicinity to hear it by its rumbling. There is a conflict in the evidence as to whether the bell was rung or the whistle blown as the train approached this crossing, but there is no dispute of the testimony of the fireman that the whistle was blown at Horton street, about 1,000 feet away. Ball testified that he did not hear the roar of the train, the bell, or the whistle; that the first he knew of the approach of the train was when it was almost upon him; that he did not ask Sadler to look or listen, or take any precautions; that Sadler did not tell him that the train was coming, or say anything; that there was nothing to prevent Sadler from seeing the train for some distance, and that the train came from the side upon which Sadler was sitting.

Ordinance No. 38045 of Seattle was pleaded by respondents and is as follows:

' Locomotive and Cars; Speed Limit.--Sec. 101. It shall be unlawful for any person having control of the running or drawing of any cars by any steam locomotives, or the control or running of any steam locomotive alone, to allow or permit the same to go or move along, over or across the surface of any public place, or at any place south of Denny way and north of Hanford street at a greater rate of speed than six (6) miles per hour.'

Appellants moved to strike the pleading of this ordinance prior to the trial, which was denied by the court, and objected to the introduction of the ordinance as evidence at the trial, which objection was overruled.

Appellants pleaded affirmatively contributory negligence on the part of both Ball and deceased, Sadler, which affirmative allegations were put in issue by denials.

Appellants at proper times, moved that a verdict...