Smith v. Northern P. Ry. Co.

• Decision Date: 08 April 1912
• Citation: Smith v. Northern P. Ry. Co., 122 P. 595, 68 Wash. 77 (Wash. 1912)
• Parties: SMITH v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

122 P. 595

68 Wash. 77

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

Supreme Court of Washington

April 8, 1912

Department 1.Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by Flora Smith against the Northern Pacific Railway Company and another.From a judgment for plaintiff, defendants appeal.Reversed, and new trial awarded.

Geo. T Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for appellants.

Gus L Thacker and Hayden & Langhorne, all of Tacoma, for respondent.

FULLERTON J.

This action was brought by the respondent to recover for the death of her husband, William H. Smith, who was killed while crossing the appellant's railroad tracks in the city of Centralia.Third street in the city of Centralia extends east and west, and is crossed at practically a right angle by some seven different tracks of the railway company.Numbering the tracks from the west to the east, the distance measured from the outside of the closest rail of the one track to the outside of the closest rail of the other between 1 and 2 is fifty feet, between 2 and 3 ten feet, between 3 and 4, 4 and 5, and 5 and 6, nine feet.The several tracks are connected with cross-overs at various places south of the street, enabling trains to pass from one track to another.Third street at this point is 60 feet in width, and is one of the principal thoroughfares connecting the east and west portions of the city.There is a sawmill located near the crossing, and many of its employés use the street in going to and from their work.A watchman's shanty is located to the west of track 2; the watchman going on duty at 7 o'clock a. m. No watch is kept prior to that hour, notwithstanding the principal use of the street by footmen seems to be made before that hour.Centralia is headquarters for several train crews, included among them being gravel and work trains.The railway company use the tracks crossing this street in connection with its switchyard, and between 6 and 7 o'clock in the morning the crews are busy making up trains, badly congesting the crossing during this hour.The respondent's husband at the time of his death was a policeman of the city of Centralia.He resided east of the railway tracks, and was required to report for duty at the police station, which was west of the tracks, at 7 o'clock in the morning.Smith was killed on the morning of December 23, 1910.He left his home shortly after 6 o'clock, and proceeded westerly along Third street across the appellant's railway tracks, and succeeded in passing them all in safety until he reached track No. 2.Here he met a slowly moving gravel train pulling out from the switching yard, and stopped between tracks numbered 2 and 3, waiting for the train to pass.Shortly before this a road engine, in the cab of which was a conductor, engineer, fireman, and brakeman, left the coal bunkers south of the street, and proceeded north on track 4 to a cross-over leading to track 3 where it passed over to that track, reaching the track at a point some 158 feet south of Third street, and probably 180 feet south of where Smith was standing.It was going backwards, and carried no lights visible to one standing in the direction which it was going, nor was a lookout maintained on the tender, and the respondent's witnesses testified that it rang no bell.As it approached near Smith, it was seen by a person who had ridden down on the gravel train and dropped off on reaching Third street.This person observed that Smith was standing too close to track 3 to allow the tracking engine to pass him, and, thinking to warn him, called out to him.Smith, however, instead of turning towards the engine, turned towards the person speaking, and was at that instant struck by the engine, knocked down, and killed almost instantly.On the trial, at the conclusion of the evidence, the appellants moved for an instructed verdict in its favor, on the ground, among others, that the death of Smith was caused by his own negligence.The trial court denied the motion, and submitted the question to the jury.The jury returned a verdict for the respondent, and from the judgment entered thereon the railway company appeals.

The appellant first contends that the court erred in refusing to grant its motion for an instructed verdict in its favor.It is argued that, if it be conceded that the appellant was negligent in the manner in which it operated the engine which killed the deceased, Smith, Smith was guilty of such negligence directly contributing to his death as to preclude any recovery therefor.But we think the question whether the deceased was negligent was properly for the jury.It appears to us that the facts furnish him with a large measure of excuse for failing to observe the approaching engine.Had he observed it when it first began to move in his direction, he would have seen that it was on another track from that on which it finally approached him.It turned into the latter track at a distance less than 200 feet from where he was standing.It approached him moving slowly; the engineer says at the rate of about three miles an hour.It was running backwards, displaying none of the visible signals one usually expects to see on an approaching engine.At the time of its approach, one train was passing on a track immediately in front of him, and another one on a track but a little way behind him, each making 'the usual noises incident to their operation' thus tending to prevent him from hearing the approaching engine.Moreover, he was not standing upon, but to one side of, the track on which the engine approached him.True, he did not stand far enough to one side, but the margin of safety between trains passing on the tracks between which he stood was small, and he may well have believed he was within the safety zone.Taking the situation as it stood, we think it...