Woolf v. Washington Ry. & Nav. Co.

• Decision Date: 15 March 1905
• Citation: 37 Wash. 491,79 P. 997
• Court: Washington Supreme Court
• Parties: WOOLF v. WASHINGTON RY. & NAV. CO.

79 P. 997

37 Wash. 491

WOOLF v. WASHINGTON RY. & NAV. CO.

Supreme Court of Washington

March 15, 1905

Appeal from Superior Court, Clarke County; A. L. Miller, Judge.

Action by Alice O. Woolf against the Washington Railway & Navigation Company. From a judgment for plaintiff, defendant appeals. Reversed.

B. S. Grosscup, Jas. F. McElroy, and A. G. Avery for appellant.

Rands & Hopkins and Bennett & Sinnott, for respondent.

ROOT, J.

Respondent's husband, while crossing appellant's railway track upon a public highway near Vancouver, Wash., was struck by a locomotive and killed. This action was brought for damages and resulted in a verdict and judgment of $17,500 in favor of respondent. From said judgment, appeal is taken to this court.

The most important errors assigned turn upon the question of the sufficiency of the evidence to sustain the verdict and judgment. The material facts were substantially as follows Deceased was riding in an ordinary farm wagon, driving a team of horses from Vancouver, along the county road, toward his home. About a quarter of a mile south of where the accident occurred, the county road crosses the railroad and at a point about 200 feet west of the track makes a right angle, and then runs directly north. The railroad track, from the crossing just mentioned, runs in a northerly direction bearing a little to the west, to a point where it is again crossed by the county road; this crossing being known as 'Shaw's Crossing,' and the crossing above mentioned being known as 'Porter's Crossing.' For a considerable distance north of Porter's crossing the public highway and railroad run almost parallel, and about 200 feet apart, but gradually converge, forming an acute angle at Shaw's crossing. For a considerable distance between the two crossings there was an orchard, which partially obstructed the view of the railway track from the county road, but the north end of said orchard was a distance of 475 feet south of Shaw's crossing. In this space there were no trees between the county road and the railway track, although along part of this distance the railway ran through a cut with an embankment between seven and eight feet high, which, however gradually decreased in the direction of Shaw's crossing, until at the crossing it disappeared entirely. Deceased crossed the railroad at Porter's crossing, made the turn on the west side of the track, drove along the highway past the orchard, and was in the act of driving across the railway track at Shaw's crossing, when a locomotive, coming from the same direction as he, collided with his wagon and caused his death. Various diagrams, plats, and photographs were introduced in evidence, showing the location and condition of the railway and county road, and the contour of the ground in that vicinity. It appears beyond question, and is practically conceded, that if the deceased, at any point within 25 feet of Shaw's crossing, had looked along the track toward the engine, he could readily have seen for a distance of from a quarter to a half mile. The established and conceded physical conditions show that at any point between 50 and 100 feet a person could see along the track for a distance of 600 feet or more, and as one approached the crossing he could see much further. At any point on the highway between 100 and 475 feet of the crossing an engine could be seen at any place on the track for a distance of from 475 to six or eight hundred feet from the crossing. The accident occurred in the daytime. The deceased had lived in that neighborhood four years or more, and was thoroughly familiar with the crossing, and the conditions surrounding the same. He was a man 33 years old, and possessed of good eyesight and hearing. The evidence as to where he was when he first saw the approaching engine is somewhat conflicting. One witness says he was about 50 feet, 'more or less,' from the crossing, driving at a slow walk, when he looked toward the engine, and immediately commenced to whip his horses with the lines, in an effort to cross ahead of the locomotive. Others said that he was just about to the track, or crossing the same, and driving at a walk, when he looked, and saw the engine, and commenced to whip his horses. There was no evidence of his looking at any other point or at any other time prior to those just mentioned. There is no evidence that he stopped to 'look and listen.' The evidence as to the speed of the locomotive varied greatly, the estimates of the speed ranging from 12 to 60 miles per hour. There was a conflict in the evidence as to whether or not the whistle was sounded or the bell rung, and as to when and where. At the close of plaintiff's case, appellant challenged the sufficiency of the evidence, and moved for an order of the court withdrawing the case from the jury and dismissing the action. The trial court overruled this motion, to which ruling an exception was taken. At the close of all of the evidence, appellant again challenged its sufficiency, and moved to withdraw the case from the jury, and for a judgment of dismissal. This motion was also denied, and exception taken. The jury having returned a verdict in favor of respondent in the amount above mentioned, a motion for new trial was interposed, but denied by the court.

We do not think this verdict and judgment can be sustained by the evidence. It is shown conclusively that the deceased, for a considerable distance before crossing the railway track could at any point, by looking, have seen the approach of the locomotive. It thus follows that either he did not look, or else he did look, and attempted to make the crossing ahead of the engine. In either case he would be clearly guilty of contributory negligence. The trial court, among other instructions, gave the following: 'If you find from the evidence in the case that the deceased, before he reached the crossing, failed to look in the direction from which the engine was approaching and drove upon the crossing, then he was guilty of contributory negligence, and you must return a verdict in favor of the defendant. If you find from the evidence in the case that the deceased observed the engine approaching, and still endeavored to cross the track, and was killed thereby, then I instruct you that his conduct was contributory neglect, in the premises, and your verdict should be for the defendant. If the deceased looked, and saw the engine, and, endeavoring to beat the engine across the crossing, he was struck, he would be guilty of contributory neglect, and cannot recover in this action.' In the light of these instructions, it is inconceivable how the jury could return a verdict for plaintiff, except upon the theory of an absolute disregard both of the evidence and the instructions. The doctrine of 'look and listen' is well established, and is applicable to the facts in this case. In the case of Railroad Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542, the Supreme Court of the United States said: '* * * The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed to both hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant.' The same court, in the case of Railroad Co. v. Freeman, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014, employs this language: 'If in this case we were to discard the evidence of the three witnesses entirely, there would still remain the facts that the deceased approached a railway crossing well known to him; that the train was in full view; that, if he had used his senses, he could not have failed to see it; and that, notwithstanding this, the accident occurred. Judging from the common experience of men, there can be but one plausible solution of the problem how the collision, occurred. He did not look, or, if he looked, he did not heed the warning, and took the chance of crossing the track before the train could reach him. In either case he was clearly guilty of contributory negligence.' In the case of Ladouceur v. N. P. R. Co., 4 Wash. 38, 29 P. 942, this court said: 'While the testimony is uncertain and contradictory in some important particulars, yet, as it appears, it is a close question whether the plaintiff can escape the charge of contributory negligence. If he could have seen along the track for a long distance while on the level place before going down the incline, he certainly knew it, and should have looked, especially as he could not see an approaching train from the southward for any great distance from the crossing while going down the incline; and he must have known this also, as his testimony shows he was entirely familiar with the situation of the track and street in the vicinity. His counsel claims that the plaintiff did look to the southward for a train while on the level space, but we fail to find any testimony to that effect in the record. On the other hand, if he could not have seen along the track but a short distance, so there would have been no object in looking...