Zwink v. Burlington Northern, Inc.

• Decision Date: 26 May 1975
• Docket Number: No. 2405--I,2405--I
• Citation: 13 Wn.App. 560,536 P.2d 13
• Parties: Arnold P. ZWINK, Respondent, v. BURLINGTON NORTHERN, INC., a corporation, Appellant.
• Court: Washington Court of Appeals

Page 560

13 Wn.App. 560

536 P.2d 13

Arnold P. ZWINK, Respondent, v. BURLINGTON NORTHERN, INC., a corporation, Appellant.

No. 2405--I.

Court of Appeals of Washington, Division 1.

May 26, 1975.

[536 P.2d 15] Burlington Northern, Inc.,

Gerald A. Troy, Seattle, for appellant

Daniel F. Sullivan, Seattle, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

On a dark January afternoon, plaintiff's automobile collided with a train operated by the defendant railroad.

The accident happened at approximately 5:15 p.m. on January 13, 1969 at what is known as the Holgate Street crossing. This is in the industrial area of Seattle where South Holgate Street crosses some nine railroad tracks.

Plaintiff at the time was driving home from work by his accustomed route along South Holgate Street when the defendant's train consisting of an engine pushing three boxcars entered the crossing. The front of the first car of Mr. Zwink, the plaintiff, sued defendant railroad asking damages for personal injuries which he sustained in the collision as well as for extensive property damage done to his automobile.

the train struck the middle of the right side of plaintiff's automobile as it crossed the track.

The crossing was protected by a device known as a Marquardt Grade Crossing Predictor which had been installed almost a year previously. This system was to automatically actuate crossing bells, lights, and deschending gates in a previously determined sequence beginning some 20 or 21 seconds prior to the train arriving at the crossing.

In addition, the defendant railroad maintained a human flagman at the crossing at this time, apparently being required to do so by city authorities during approximately the first year and a half that the automatic warning device was in operation at the crossing.

The flagman could activate the signal system by means of a manual lever, or the signal system was to automatically commence, whichever occurred first. The flagman's testimony was that he had activated the system manually on the occasion in question.

The testimony of the plaintiff and the driver of the car which preceded him through the crossing was that they received no warning of the approaching train. The testimony of defendant's flagman and train crew was that at the time of the accident the various signal lights were flashing, the bells ringing, and the gates descending and that in addition the flagman was by the crossing with his signal lantern.

The jury returned a defense verdict. The trial court granted plaintiff's motion for a new trial on the ground that it had given an erroneous instruction to the jury. It is from the order granting a new trial that defendant railroad appeals.

ISSUES

The following four issues are determinative of this appeal.

ISSUE ONE. Where the position of the defendant railroad throughout the case was that it had an on-duty flagman stationed at the crossing at the time of the accident, did it, as a matter of law, have notice of any evident malfunctioning or nonfunctioning of the mechanical warning device at the crossing?

ISSUE TWO. Was it error under the circumstances of this case to instruct the jury that the railroad was entitled to notice that its signal devices were not working before it could be found negligent in that regard?

ISSUE THREE. Was the plaintiff's exception to the instruction imparting the issue of notice of signal malfunction or nonfunction into the case adequate to preserve his objection to it?

ISSUE FOUR. Was the instruction on the issue of notice an error which justified the trial court granting a new trial?

DECISION

ISSUE ONE.

CONCLUSION. Where, as here, the defendant railroad's position throughout the trial was that it had an on-duty flagman stationed at the crossing with the crossing and the crossing signals in his direct view at the time of the accident, then the defendant, as a matter of law, had notice of any evident malfunctioning or nonfunctioning of the mechanical warning device with which the crossing was equipped.

Consideration of this appeal begins with the premise that each case involving a railroad crossing accident must be considered in light of its own peculiar facts. Hewitt v. Spokane, Portland & Seattle Ry., 66 Wash.2d 285, 291, 402 P.2d 334 (1965); O'Dell v. Chicago, Milwaukee, St. Paul & Pacific R.R., 6 Wash.App. 817, 821, 496 P.2d 519 (1972).

An important factual issue in this case was whether the mechanical signals with which the crossing was equipped were properly in operation before the collision occurred. This was the subject of considerable testimony on the part of both parties, including conflicting eyewitness accounts.

A further issue was injected into the case by the giving of an instruction proposed by the defendant. This was as to the railroad's entitlement to notice before it could be held responsible for its crossing warning system not working. This was before the jury by virtue of the following instruction:

If the jury should find that the railroad's signal devices were not operating at the time of the accident, defendant railroad would not be negligent in this respect unless it knew or in the exercise of ordinary care should have known thereof for a sufficient time to repair the devices or furnish additional warning.

Instruction 10a.

At the time of the plaintiff's motion for a new trial, the trial court expressed itself thusly as to instruction No. 10a:

THE COURT: And the point is, and it seems to me under the facts that the question of having notice really isn't one for the jury to decide because the railroad is right there with an employee. So, the moment it (the automatic signaling device) doesn't work he had notice and he is supposed to be out there flagging. All right. By his testimony he is flagging. But, the jury then shouldn't be permitted to consider whether there was notice or not to the defendant but only whether the flagman was out there flagging.

Thereupon the order granting a new trial was entered. In that written order, the trial court's reasoning as to the effect of this instruction was further stated, as required by CR 59(f):

(T)he court is of the opinion that it was error to submit instruction 10a which was submitted by the defendant and excepted to by the plaintiff as there was no evidence to support the giving of instruction 10a on notice and, in fact, the evidence in the case as a matter of law would indicate that the defendant railroad in fact had notice inasmuch as one of its employees, Mr. Smith, whose acknowledged job it was to serve as a flagman at the crossing, was present at the time the accident occurred and who was alleged to have been actually flagging the crossing and the defendant submitted such an instruction which was incorporated as the Court's instruction No. 13.

It is the Court's opinion then, that inasmuch as Mr. Smith was an employee of the railroad, was at the crossing, and his job was to flag the crossing, no other notice to defendant railroad was required and it was error to give instruction No. 10a and, further, that instruction No. 10a under the circumstances, constituted a comment on the evidence serving to deprive the plaintiff of a fair trial and also under the circumstances because of instruction No. 10a, substantial justice was not done. . . .

The general rule is that the failure of a railroad crossing signaling device to operate is generally held evidence of negligence which may be taken into consideration along with other acts tending to show negligence to establish liability on the part of a railroad. Failure of signaling device at crossing to operate as affecting railroad company's liability, Annot., 90 A.L.R.2d 350, 354, § 3 (1963); Aores v. Great N. Ry., 166 Wash. 17, 22, 6 P.2d 398 (1931).

The defendant cites to us the following principle as justifying the giving of this instruction:

Under certain circumstances the railroad company may not be liable in the event of failure of the signal to function, as, for example, where the bell failed to ring momentarily or where the flashlight signals temporarily failed to function. It has been held that, in order to charge a railroad company with negligence in this matter, it must be shown that the railroad company had knowledge of the defective signal, or constructive notice thereof, as where the defective condition existed for such length of time that the company in the exercise of due care should have discovered it.

74 C.J.S. Railroads § 727b, at 1348 (1951). Defendant's numerous other citations of authority are to this same effect and most of them are collected in the footnotes to 74 C.J.S., Supra and in the annotation, 90 A.L.R.2d, Supra § 5. See also Wright v. Kennewick, 62 Wash.2d 163, 165, 391 P.2d 620 (1963).

While this principle argued by defendant has been stated many times in general terms, it is not one that can necessarily be applied to every case of alleged signal malfunction or nonfunction under whatever circumstances. See e.g., 90 A.L.R.2d 354 (1963); Mohr v. Toledo, Peoria & W.R.R., 232 F.2d 869 (7th Cir. 1956). This is particularly so where it is expressed as an instruction to a jury.

No case has been cited to this court, and we can find none, which stands for the proposition embodied in instruction No. 10a in a case as here where, according to the defendant's own testimony and theory of the case, a human crossing guard is stationed at the crossing and in immediate charge of it at the time of the accident.

It is undisputed that the defendant's flagman was acting within the scope and course of his employment at the time of the accident. The defendant is, therefore, as a matter of law, responsible for his acts and omissions in that regard. Baxter v. Morningside, Inc., 10 Wash.App. 893, 898, 521 P.2d 946 (1974).

The following rule is fundamental:

The general rule, which is subject to certain qualifications, is that the principal is chargeable with, and bound by, the knowledge of or notice to his agent received while...