Schofield v. Northern Pacific Railway Co.

¹ Reported in 104 P.2d 324. This action was brought for the purpose of recovering damages for wrongful death. The defendants Northern Pacific Railway Company and W.C. Armstrong separately demurred to the amended complaint, which will be referred to as the complaint, and both demurrers were sustained. The plaintiff refused to plead further and elected to stand upon her complaint. From the judgment dismissing the action, she appealed.

The accident which resulted in the death of Glenn W. Schofield happened at a railroad crossing a short distance west of the city limits of the city of Renton. The deceased was riding in an automobile truck driven by one D. Dickinson on the highway that extends in a northerly and southerly direction. The railway company owns and maintains a railway track which crosses this highway. The accident happened on the first day of April, 1938, at about one o'clock a.m. At the time, a freight train, going west, was passing over the crossing, and the automobile truck struck one of the freight cars, with the result that the deceased was thrown from the truck and thereafter died.

The complaint is too long to be set out here in full, and we will only epitomize the chief charges of negligence. It is alleged that the track was elevated above the roadway, and, to cross it, it was necessary to drive up an incline, and the headlights of the truck would not show a passing train until the truck was very close to the track; that the railroad track crosses the highway at about one hundred and twenty-five feet north of the intersection of two paved and heavily traveled highways, at which intersection there is an intermittent "blink traffic light," which light and intersection engage the attention of drivers of vehicles coming from the south to the north; that the railway company did not maintain any sign or warning to the south of the track indicating that there was a railroad crossing; that the light at the intersection intermittently diffuses the rays of light along the highway which merge with automobile lights, and this, with the element of the short distance, creates a deceptive situation which makes it difficult to determine whether a train is upon the crossing; that the situation had existed for a great many years and was well known to the railroad company; that, as the train approached the crossing, no bell was rung and no whistle was sounded; that, if the bell had been rung or the whistle sounded, either of them was sufficiently loud to warn the parties in the truck of the presence of the approaching train; and that this failure was one of the proximate causes of the decedent's death.

[1] It is a general rule that, when a railroad train actually occupies a crossing, that in itself supersedes all other warnings and gives notice by its own presence. Reines v. Chicago, M., St.P. P.R. Co., 195 Wash. 146, 80 P.2d 406; Webb v.Oregon-Washington R. Nav. Co., 195 Wash. 155, 80 P.2d 409.

The first of those cases had to do with a situation where the automobile ran into the side of a train when a dense fog was prevailing, and the other happened upon a lighted city street in the city of Spokane. In neither of them was there any unusual or extrahazardous situation presented, and in neither was there anything that could be said to be in the nature of a trap.

There is an exception to the general rule where the situation is unusual or extrahazardous, or constitutes a situation in the nature of a trap. Licha v. Northern Pac. R. Co., 201 Minn. 427,276 N.W. 813; Christensen v. Willamette Valley R. Co., 139 Ore. 666, 11 P.2d 1060. In the first of these cases, an automobile was approaching a railway crossing going downhill, and the situation was such that the lights of the vehicle would not show the track or the train thereon until the automobile was very close thereto, and it was there held that the question was one for the jury. In the second of the two cases, it was held that a railway train, made up in such way as to be misleading, in effect, constituted a trap, and the question presented was not one of law, but one of fact.

In the case of Ullrich v. Columbia Cowlitz R. Co.,189 Wash. 668, 66 P.2d 853, while it was held that there could be no recovery in that case as a matter of law, it was therein recognized that, if a situation was unusual or extrahazardous, or constituted a trap, the question would be one for the jury. In the opinion in that case, there was an extensive quotation from the Oregon case, above cited.

Whether when an automobile runs into the side of a train moving over a crossing or standing thereon presents a question of fact or one of law, depends upon the particular facts of each case.Trask v. Boston M.R., 219 Mass. 410, 106 N.E. 1022;Louisville N.R. Co. v. Mischel's Adm'x, 272 Ky. 295,114 S.W.2d 115.

Cases such as Wink v. Western Maryland R. Co., 116 Pa. Super. 374,176 A. 760, and Chesapeake O.R. Co. v. Switzer,275 Ky. 834, 122 S.W.2d 967, from jurisdictions where the rule is that the driver of a motor vehicle must proceed at a speed where he can stop within the range of his headlights, have no application in this state, because the rule here is one of due care. Eldredge v. Garrison, 184 Wash. 687, 52 P.2d 1240;Dumbolton v. Oregon-Washington R. Nav. Co., 186 Wash. 433,58 P.2d 806.

In each of the cases of Cash v. New York Central R. Co., 294 Ill. App. 389, 13 N.E.2d 1012, and Bledsoe v.Missouri-Kansas-Texas R. Co., 149 Kan. 741, 90 P.2d 9, was presented a condition of the highway entirely different from that presented in the case now before us.

Many of the cases which hold that the railroad company was not liable as a matter of law, either because there was no negligence or because the driver of the colliding automobile was guilty of contributory negligence, call attention to the fact that there was nothing in those cases to indicate an unusual or extrahazardous situation, nor anything in the nature of a trap. The cases of Aaron v. Martin, 188 La. 371, 177 So. 242; Reedv. Erie R. Co., 134 Ohio St. 31, 15 N.E.2d 637; Sheets v.Baldwin, 146 Kan. 596, 73 P.2d 37, and Esterline v.Kennicott, 277 Mich. 130, 268 N.W. 835, are a few of the cases which recognize such a limitation upon the general rule. No case, so far as we are informed, holds that, where an automobile crashes into the side of a railroad train on a crossing, the railway company would not be liable under any and all circumstances.

[2, 3] We now come to the allegation in the complaint with reference to the failure to ring the bell or sound the whistle. Rem. Rev. Stat., § 2528 [P.C. § 9091], provides that every engineer driving a locomotive on any railroad who shall fail to ring the bell or sound the whistle upon the locomotive or cause the same to be rung or sounded at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing of such bell or the sounding of such whistle until the locomotive shall have crossed the road or street, shall be guilty of a misdemeanor. The failure to ring the bell or sound the whistle would be negligence per se, and it cannot be held that, as soon as the locomotive passed over the crossing, the railroad company would be purged of that negligence.

In the case of Sullivan v. Boone, 205 Minn. 437,286 N.W. 350, in which state there is a statute similar to the one just mentioned, it was held, on the particular facts of that case, that, even though the bell was not rung or the whistle sounded, the railroad company was not liable as a matter of law. The court, however, did not hold that the railroad company was not negligent, but only that that negligence was not the proximate cause of the accident.

The case of Kramers v. Chesapeake O.R. Co., 60 Ohio App. 556, 22 N.E.2d 227, is to the same effect, although the statute there was different. There was no requirement in the Ohio statute that the bell should be continuously rung or the whistle sounded until the locomotive reached the crossing.

In this state, usually, the question of proximate cause is for the jury, and it is only when the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion, that it may be a question of law for the court. Hellan v. Supply Laundry Co., 94 Wash. 683,163 P. 9; Caylor v. B.C. Motor Transportation, 191 Wash. 365,71 P.2d 162; Bracy v. Lund, 197 Wash. 188, 84 P.2d 670.

The complaint in this case, as above indicated, contains an allegation to the effect that, if the bell had been rung or the whistle sounded, as required by the statute, either would have been sufficiently loud to have been heard by the two men in the truck and would have served as a warning that the train was approaching the crossing.

The facts as alleged in the complaint, in our opinion, present a question of fact for the jury, and not one of law for the court. The demurrers to the complaint should have been overruled.

The judgment will be reversed, and the cause remanded with direction to the superior court to proceed as herein indicated.

BLAKE, C.J., MILLARD, JEFFERS, and DRIVER, JJ., concur.