Cox v. Polson Logging Co. , 18 Wash. 2d 49 ( 1943 )

I am in accord with the majority opinion, save in so far as it is held that the jury should pass upon the question of whether or not appellant was negligent in failing, if it did so fail, to throw out a lighted flare upon the highway, and whether or not an ordinarily prudent person occupying the position of the decedent would, under the testimony, be lulled into a false sense of security by relying upon the fact that, upon crossing highways, appellant's employees did frequently throw from its trains lighted flares.

James A. Jensen, the driver of the automobile in which decedent was riding, testified that he had several times driven over this road, and knew of the crossing of the highway by appellant's railroad. He also stated that he had a general knowledge of the crossing and its location, but upon the night in question was not aware that he was in the immediate vicinity of the crossing until a moment before the collision. He also testified that he relied upon being notified of the presence of a train upon the track by the presence of a lighted flare upon the highway, and that, seeing no flare, he proceeded at a sustained speed of about thirty-five miles per hour.

As stated by the majority, the throwing of flares from the train was not required by any statute or departmental regulation. This was purely a voluntary act performed by the train crew out of abundant precaution to warn traffic on the highway.

In this state we have many laws and regulations governing the matter of fires in forest areas. By Rem. Rev. Stat. (Sup.), § 5788 [P.C. § 2565], the burning of forest material within any county in the state in which there is a warden or ranger, during the period beginning April 15th and ending October 15th of each year, without first obtaining permission in writing, is prohibited, the period referred to being designated as the "closed season."

By Rem. Rev. Stat., § 5791 [P.C. § 2568], any person who, without a permit, during the closed season, kindles a fire in or dangerously near any forest material, except for necessary lumbering operations, etc., is subject to fine.

The first paragraphs of §§ 5795 and 5795-2 [P.C. §§ 2572 and 2572-2], respectively, read as follows:

"No one operating a railroad shall permit to be deposited by his, or its, employees, and no one shall deposit during the closed season, fire or live coals upon the right of way outside of the yard limits, and within one-quarter of one mile of any forest material, without such deposit of fire or live coals shall be immediately extinguished."

"It shall be unlawful during the closed season, for any person to throw away any lighted tobacco, cigars, cigarettes, matches, fire-crackers, or other lighted material in any forest brush, range, or grain areas in this state."

By Rem. Rev. Stat. (Sup.), § 5794 [P.C. § 2571], it is made unlawful to operate, during the closed season, a spark-emitting logging locomotive, unless the locomotive is equipped with a suitable spark arrester, a power pump and hose, and a sprinkler system.

Rem. Rev. Stat., § 2523 [P.C. § 8844], reads as follows:

"Every person who shall willfully or negligently set, or fail to carefully guard or extinguish any fire, whether on his own land or the land of another, whereby the timber or property of another shall be endangered, or who shall fail to respond to any lawful summons to aid in guarding or extinguishing any fire, shall be guilty of a misdemeanor."

It would seem, then, that, during the six months following April 15th, the use of flares such as those with which we are here concerned, in the area in which the accident occurred, is absolutely prohibited by law. During other periods of dry weather it might well be dangerous and subject the railroad company to actions for damages or penalties.

While the accident which occasioned this lawsuit occurred in January, it seems to me that a custom which can be lawfully followed for not more than six months in the year cannot become such an established custom as would justify travelers along the highway in relying thereon, to the exclusion of ordinary precautions which drivers of automobiles should take upon approaching a known railroad crossing. Many dark, stormy nights occur during the "closed season," and such a custom as this, which may be lawful April 30th and be unlawful the next day, seems to me to be of too uncertain a nature to afford foundation for the rule laid down in the majority opinion.

In the case of Rhine v. Duluth, M. I.R.R. Co., 210 Minn. 281,297 N.W. 852, the supreme court of Minnesota in discussing questions very similar to those here presented, said:

"The essential elements of a custom are stated in C., M. St.P. Ry. Co. v. Lindeman (8 Cir.), 143 F. 946, 949, thus:

"``A custom has the force of law, and furnishes a standard for the measurement of many of the rights and acts of men. It must be certain or the measurements by this standard will be unequal and unjust. It must be uniform; for, if it vary, it furnishes no rule by which to mete. It must be known, or must be so uniform and notorious that no person of ordinary intelligence who has to do with the subject to which it relates and who exercises reasonable care would be ignorant of it; for no man may be justly condemned for the violation of a law or a custom which he neither knows nor ought to know. In short, a binding custom must be certain, definite, uniform, and known, or so notorious that it would have been known to any person of reasonable prudence who dealt with its subject with the exercise of ordinary care.'

"These were the tests of custom applied in Salisbury v. NewYork Cent. R. Co., 220 App. Div. 491, 222 N.Y.S. 38; Mataraniv. Reading Co., 119 N.J.L. 43, 194 A. 246. A custom must be clearly proved, and where evidence is uncertain and contrary the custom is not established. 17 C.J. page 522.

"It is contrary to common sense that a straightaway or through train movement should be stopped to put out flares on both sides of the railroad crossing. It is obvious that a train's progress over such crossings would be so hampered as to be an impractical method of operating a railroad. Such being the case, proof of a custom cannot rest on such testimony as was here presented. The trial court was right in its rulings that no such custom was established."

In the case cited, the defendant's witnesses testified that warning flares were placed on the highway during switching operations, but not to give notice of the presence of an ordinary through train. In the case at bar, appellant's agents met the proposition suggested by the supreme court of Minnesota in the last paragraph quoted, by throwing the burning waste from moving trains, but, in my opinion, this simply adds another element of uncertainty to the effectiveness of the warning of the presence of the train.

Such flares are at best a very uncertain method of giving warning of the presence of a train. It does not appear that it was the custom of the engine crew to throw a flare upon the road on each side of the train, and at least under some circumstances a flare on one side of the track might be a very doubtful warning to automobiles approaching from the other side of the track. Under such circumstances, the extent of the warning given by the flare would largely depend upon the brightness of the flame and its position on the highway. Certainly the flame of such a flare would not be very intense or long lasting, else it might well cause damage. Apparently the length of time the flares would burn is uncertain. They were simply casual handfuls of waste, carrying some oil, and after being lighted were thrown or kicked from the engine as it proceeded to cross the highway. Doubtless such flares would vary considerably in the degree of the warning which they would give, depending upon the waste and the amount of oil which it had absorbed. While there is testimony in the record to the effect that the flares would not be put out by rain, it would seem that their visibility might at least be reduced by rain falling upon them. Kicked from a moving engine, the flares might or might not light in a conspicuous position on the highway.

Appellant's witnesses stated that upon the night in question a flare was thrown from the engine, and both interested and disinterested witnesses testified that it was burning after the collision occurred. As stated by the majority, however, the record contains evidence which would support a finding by the jury that, upon the occasion of the accident, no flare was burning.

The majority hold that the testimony concerning these flares presents a question upon which the jury should pass, as to whether or not one in decedent's position would have been justified in relying upon seeing a flare if a train was occupying the track. In support of its conclusion that this question should be passed on by the jury, the majority cite several authorities and the general rule quoted in Ray v. Hines, 118 Wn. 530,203 P. 929, from 33 Cyc. 946, to the effect that, where a flagman is employed or a gate established, whether such duty is imposed by statute or not, the railroad may be liable if the person in charge fails to perform his duty.

In my opinion, the authorities cited are not here controlling, because a gate or a wigwag device or the usual presence of a flagman are all substantial, permanent, and definite methods of giving notice of the approach or presence of a train, and persons customarily using the road would naturally rely upon such notice, not knowing, of course, whether the presence of the gate, signal, or flagman was or was not required by law or regulation.

Of course, the presence and operation of a flagman, gate, or a wigwag device would not be dependent upon the season of the year, but would function at all times and seasons.

In the case of Dunlap v. Pacific Electric R. Co., 12 Cal.App.2d 473,55 P.2d 894, a directed verdict in favor of the defendant was affirmed on appeal. It appeared that one Gussie Dunlap, while riding as a passenger in an automobile, was killed as the result of a collision between the automobile and an electrically propelled train of freight cars, operated by the defendant. A wigwag signal was in position, which commenced to function when an approaching train was several hundred feet from the crossing. The signal, however, ceased to operate when the head of the train reached a point 108 feet from the center of the highway at the intersection. The driver of the automobile testified that his first notice of the presence of a passing train was when he saw a box car, but that he saw no lights nor heard any sound from a functioning wigwag signal. His testimony was supported by other witnesses. On appeal, plaintiff contended that the defendant should have given other notice of the presence of a moving train. The judgment entered upon the directed verdict was affirmed.

In the case of Toledo Terminal R. Co. v. Hughes, 115 Ohio St. 562,154 N.E. 916, the supreme court of Ohio affirmed a judgment in favor of the defendant, entered upon a directed verdict, holding in effect that the driver of an automobile, approaching a railroad crossing at which he knows that an automatic warning signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is nevertheless bound to use such care in addition as an ordinarily prudent man would use under such circumstances. The trial court dismissed the case upon the opening statement of plaintiff's counsel. From this statement it appears that at the time of the accident it was foggy, that the train was stationary, and that an existing traffic signal which operates by swinging, flashing a light, and ringing a bell, was not functioning. The court called attention to the fact that the plaintiff knew of the existence of the railroad crossing, and that, notwithstanding the fact that he was not warned by the mechanical signal devices, he was guilty of contributory negligence as matter of law.

In the case of Gallagher v. Montpelier Wells R.R., 100 Vt. 299,137 A. 207, 52 A.L.R. 744, the supreme court of Vermont affirmed a judgment entered upon a verdict in favor of the defendant in an action for damages sustained by the plaintiff while riding as a passenger in an automobile operated by her brother. The court called attention to the essential difference between cases in which the traveler on the highway was induced by the lack of a warning signal "to go upon a clear, and apparently safe, crossing in front of an approaching train by which he was struck and injured," and cases such as the one under consideration, where

". . . the traveler ran into a train already occupying the crossing, which train of itself was notice of existing danger. The plaintiff could not assume that the crossing was clear when it was in fact obstructed."

The very nature of the casual handful of lighted waste thrown from a moving train is such that persons should not be entitled to rely thereon, and that one be allowed to recover against the railroad upon no basis other than testimony to the effect that upon the occasion of the particular accident no flare was burning, it seems to me is without warrant of law.

Such a rule penalizes one who makes an unusual effort, not required by law, to protect the public. The very nature of the flare is such that its operation is at best uncertain, and at some seasons it cannot be employed at all.

I accordingly dissent from so much of the opinion of the majority as holds that the testimony introduced by respondent, to the effect that on the night in question no flare was burning, affords any basis for a finding by a jury that appellant was in any way negligent in law.