Ullrich v. Columbia & C. Ry. Co.

• Decision Date: 03 April 1937
• Docket Number: 26535.
• Citation: 66 P.2d 853,189 Wash. 668
• Court: Washington Supreme Court
• Parties: ULLRICH et ux. v. COLUMBIA & C. RY. CO. et al.

66 P.2d 853

189 Wash. 668

ULLRICH et ux. v. COLUMBIA & C. RY. CO. et al.

No. 26535.

Supreme Court of Washington

April 3, 1937

Department 2.

Appeal from Superior Court, Cowlitz County; Howard J. Atwell, Judge.

Action for personal injuries by E. R. Ullrich and Cora Ullrich, his wife, against the Columbia & Cowlitz Railway Company and Weyerhaeuser Timber Company. From a judgment on a verdict for plaintiffs, defendants appeal.

Reversed with directions.

Charles H. Paul and Joseph T. Woods, both of Longview, for appellants.

Edgar P. Reid, of Kelso, for respondents.

TOLMAN Justice.

This is an action for personal injuries suffered in a collision between an automobile, occupied and operated by the plaintiffs, and a logging train, operated by the defendants at a crossing within the limits of the city of Longview. The case was tried to a jury which returned a verdict in favor of the plaintiffs. From a judgment on the verdict the defendants have appealed.

Among the many assignments of error are two which are based upon the refusal of the trial court to sustain the challenge to the sufficiency of the evidence at the close of all of the testimony and its refusal to grant the defendants' motion for a directed verdict. These assignments are all that we find it necessary to consider, but their consideration requires a statement of that part of the evidence which bears upon the charges of negligence.

The respondents are husband and wife. They were occupying the family car which was being operated by the husband. The husband, at least, had been a resident of the neighborhood since a time Before the railroad was constructed. He was familiar with the crossing and the physical conditions in its vicinity. The crossing was lighted by a 300-watt electric flood light, placed at a height of about 20 feet, and located at the northeast corner of the intersection. The light was a standard light for the purpose for which it was intended and the driver of the car testified that he saw it and was aware it signified when he was still 200 feet distant from the crossing. There was a white cross-arm railway crossing sign about 15 feet high, at the southeast corner of the intersection. The time was about 8:30 in the evening of a March day and there was a fairly heavy rain falling with some wind, but not a violent storm. There are charges in the complaint that the view of the railroad from the highway was obstructed, but the evidence is undisputed that the view of the railroad to the south was unobstructed for a distance of approximately 400 feet and that the view to the north was unobstructed for 100 yards, or more, except possibly for one comparatively small clump of willows growing about 5 feet in height above the railroad track and situated some 60 feet north of the highway crossing. There is no testimony to the effect that any possible obstruction in any way contributed to or caused the accident.

The respondent husband testified that he was driving at about 15 miles per hour, going east and thus approaching the crossing from the west. The first railway crossing sign, called a reflector, was situated 300 feet west of the crossing. The driver saw this reflector, knew that it indicated the railroad crossing 300 feet farther on, and testified that he then slowed down to a speed of 10 or 12 miles per hour and proceeded toward the crossing. Both the highway and the railway track were practically level, except that in the last 100 feet there was a rise of 1.3 feet in the highway; the most of the rise being in the last 50 feet. There was nothing whatever to obstruct the driver's view of the crossing except the natural darkness and the rain.

At this time the crossing was actually occupied by appellants' logging traim moving toward the south at a speed not in excess of 25 miles per hour. The train consisted of seventy empty logging cars, each 50 feet in length with bumpers at each end and a center space between bumpers. Connecting the front and rear truck of each car was a reach, or timber, 8 inches thick, the bottom of which would be 34 1/2"' above the rail upon which the car traveled. The length of the center skeleton portion of each car was apparently less than half the total length of the car, and, also, it appears that these logging cars constituting this train were the usual type of logging car, almost universally used by all engaged in transporting logs by rail in the timbered portions of this state. The train and the cars of which it was composed were in all respects such as might be expected at that particular crossing at any time.

The respondents, and a passenger riding with them in their car each testified that, as they thus slowly approached, the crossing seemed to be clear until their automobile was within 6 or 8 feet of the railroad track when each suddenly saw something moving and the driver promptly stopped the automobile, but so near to the moving train that something projecting therefrom struck the automobile and caused the damage of which complaint is made.

The automobile came in contact with a car at about the middle of the train, which was 3,500 feet or more in length, hence the engine with its headlight had probably passed the crossing Before respondents' automobile had reached the reflector sign 300 feet west of the track and the caboose, with its side lights, had not yet come within the view of one looking directly along the highway and at the crossing.

The respondents seem to make some point of the fact that bullets had been fired through the reflector of the crossing light and that the reflector was somewhat corroded around the bullet marks, but no one attempted to say that those defects in the reflector had any effect upon the situation. All such evidence as was offered upon that subject is to the contrary. Also, respondents point out that the reflector light was not directly over the intersection, but somewhat to...