Wood v. Chicago, M., St. P. & P. R. Co.

• Decision Date: 26 November 1954
• Docket Number: No. 32633,32633
• Citation: 277 P.2d 345,45 Wn.2d 601
• Court: Washington Supreme Court
• Parties: William P. WOOD, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a corporation, and Union Pacific Railroad Company, a corporation, Appellant.

Page 601

45 Wn.2d 601

277 P.2d 345

William P. WOOD, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a

corporation, and Union Pacific Railroad Company, a

corporation, Appellant.

No. 32633.

Supreme Court of Washington, Department 1.

Nov. 26, 1954.

Rehearing Granted Feb. 17, 1955.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Altha P. Curry, Seattle, for Union Pac. R. Co.

John H. Kirkwood, Jr., John W. Schumacher, Aberdeen, for respondent.

FINLEY, Justice.

This is an action for damages resulting from a collision between plaintiff's automobile (proceeding in a generally northerly direction on primary state highway No. 13) and a freight train of defendant, Union Pacific Railroad Company (standing on railway tracks which cross the highway in a generally easterly and westerly direction). The railway crossing (scene of the accident) is approximately one hundred seventy feet within the city limits of Cosmopolis, Washington. The train, en route from Hoquiam to Centralia, stopped a short time prior to the accident west of the crossing. The engine was uncoupled and crossed the highway to a switch about three hundred feet east of the crossing. It then backed over the crossing on a side or passing track, north and parallel to the main track. Nine gondola cars and one tank car were picked up by the engine from the passing track. The engine and the ten cars proceeded forward, passed this switch, and backed to the west, to make connections with the train which had been left standing west of the crossing on the main track. A brakeman was between the cars, effecting a coupling thereof, when the accident occurred. The highway immediately south of the crossing is straight and level for a distance of about fifty or sixty feet. Thereafter, it continues straight, but is uphill for a distance of around eight hundred feet.

The plaintiff testified that he rounded a curve at the top of the hill at approximately fifty miles per hour, removed his foot from the accelerator, and proceeded downhill on compression, with his foot off of the brakes; that he saw the train when he was about one hundred feet away from it; that his automobile was then traveling between forty and forty-five miles per hour. He attempted to put on the brakes but only succeeded in getting his foot on the brake pedal before his automobile crashed into the side of a gondola car loaded with logs. The gondola car was painted black and had white lettering on it. The plaintiff had a fleeting glimpse of a red glare underneath the train, apparently from a fusee placed by a train crewman on the north side of the crossing. Plaintiff was familiar with the crossing, having crossed it twice daily over a period of four months. Normally, the state maintained a light about forty-five feet south of the crossing, but, at the time of the accident, the light was not burning. Plaintiff testified that he did not realize the light was out until several hundred feet before he reached the crossing.

The case was tried before a jury. At the end of the evidence, the trial judge granted the defendant's motion for a directed verdict, stating that plaintiff was contributorily negligent as a matter of law in failing to take proper precautions for his safety in approaching the crossing, in view of his knowledge of its existence, and in violation of the statutory speed limit of twenty-five miles per hour (applicable to the portion of the highway lying within the corporate limits of Cosmopolis where the railway crossing is located). After a motion by plaintiff for a new trial and argument thereon, the trial judge reversed himself, stating that he did so because certain evidence had been improperly excluded relative to the existence of a city-limits sign on the highway north of the crossing, and because there was sufficient evidence to go to the jury on the issue of whether the crossing constituted a trap. A new trial was granted. Defendant, Union Pacific Railroad, appealed. It should be noted that at the end of the plaintiff's evidence the defendant, Chicago, Milwaukee, St. Paul & Pacific Railroad, was dismissed without objection.

Appellant's significant assignments of error assert that the trial court erred: (a) in reversing its oral decision and, thereafter, refusing to grant appellant's motion for a directed verdict and for dismissal as of the close of all of the evidence; (b) in not entering an order or judgment of dismissal accordingly. The legal questions raised by such assignments of error are: (1) Whether there was substantial evidence from which the jury could have found negligence on the part of the railroad company; (2) Whether the evidence of contributory negligence was so persuasive that reasonable minds could not disagree thereon.

Appellant cites numerous cases for the proposition that the presence of a train on a railroad track is normally sufficient warning to motorists to negative negligence, or tort liability, on the part of a railroad company where a motorist collides with the train. Hendrickson v. Union Pac. R. Co., 17 Wash.2d 548, 136 P.2d 438, 161 A.L.R. 96. Basically, appellant contends that there is no substantial evidence from which the jury might have concluded that circumstances existed relative to the crossing at the time of the accident which constituted a trap, amounting to an exception to the general rule that the presence of the train was sufficient warning to respondent. If we were members of the jury, we might, by weighing the evidence, reach the conclusion that no trap existed and that respondent was not deceived by the darkness, the black gondola car, the absence of lights or flares, or by the topography of the crossing and the highway approaching it. However, this would be different from saying that there is no substantial evidence in the record from which the jurors could have concluded otherwise.

Furthermore, in considering a motion for a directed verdict and dismissal, or for judgment notwithstanding the verdict, the rule is that such motions admit the truth of plaintiff's evidence and all inferences reasonably to be drawn therefrom, and require that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff. LaMoreaux v. Fosket, Wash., 273 P.2d 795; Olsen v. White, 37 Wash.2d 62, 221 P.2d 542.

In Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265, 266, we said:

'A court will not be justified in taking from the jury the question of contributory negligence unless the acts committed by the party charged therewith are so palpably negligent that there can be no two opinions concerning them. * * *'

Respondent, although he admitted having used the crossing daily, emphasizes the darkness, the black color of the gondola car, the fact that he was moving downhill on the highway in such a manner that his headlights did not focus upon or illuminate the train until he was too close to stop, and the fact that even the train crew had recognized the danger of the situation by placing a fusee on the north side of the crossing, but had neglected to place one on the side where respondent could have seen it. Viewing the evidence and the reasonable inferences therefrom in the light most favorable to respondent, we are inclined to disagree with the railroad's contention that any question of negligence on its part should have been taken from the jury by the trial court.

Now as to the matter of contributory negligence: Since it is our view that there is substantial evidence in the record from which the jury could have concluded that respondent was deceived or trapped by the circumstances pertaining to the crossing, it seems to us that reasonable minds might well disagree as to whether, under all the circumstances, respondent's conduct, among other things his speed of between forty and forty-five miles per hour at a point one hundred feet from the crossing when he first saw the train, was or was not contributory negligence and a proximate cause of the accident. However, the location of the crossing, one hundred seventy feet within the city limits of Cosmopolis, and the speed limit of twenty-five miles per hour, applicable to travel on the highway for a distance of the one hundred seventy feet south of the crossing, requires detailed discussion.

Appellant vigorously contends that respondent was guilty of contributory negligence per se because he exceeded the maximum speed limit of twenty-five miles per hour within the limits of an incorporated town, as prescribed by RCW 46.48.020. The respondent admittedly was traveling from forty to fifty miles per hour at the time he entered the official city limits of Cosmopolis, which, as mentioned above, is one hundred seventy feet south of the crossing, according to the official records in evidence. However, it was established that there was no city-limits sign or speed sign south of the railroad crossing. Photographs of the crossing, admitted into evidence without objection, clearly indicate that the city-limits sign and a twenty-five mile per hour speed sign were posted well north of the crossing, although testimony of this fact was excluded (improperly, we think). Thus, anyone driving into town could not know that the crossing was within the city limits; if the signs were relied upon, the observer would necessarily believe the crossing to be outside the city limits. The respondent indicated such a belief in his sworn complaint, wherein he alleged that the crossing was outside the city limits. The appellant railroad admitted this to be the fact in its answer. After respondent rested his case, the true city limits were established at the trial by a surveyor from the county assessor's office, who testified for appellant.

It may be noted that respondent's objections to this evidence were limited to challenging the qualifications of the surveyor and the authenticity of official records. These objections proved to be without merit. No...