McKinney v. Port Townsend & Puget Sound Railway Co.

Fullerton, J.

(dissenting) — I am unable to concur in the foregoing opinion. The statute makes it a penal offense for an engineer driving a locomotive on any railway to fail to sound the whistle at least eighty rods from any place where the railway crosses a traveled road, or to continue to sound such whistle or ring the bell until such crossing be passed. It is conceded in the record that but one blast of the whistle was blown when the crossing where the accident occurred was approached, and it is a disputed question whether the bell was rung at all. It is a matter of common knowledge that the ordinary signal for a grade crossing is two long and two short blasts of the whistle, and that one blast indicates an approach to a station and a slowing up of the speed of the train, if not a full stop. The evidence, therefore, discloses not only that the operators of the train were negligent in approaching this crossing, but gave signals that were actually misleading. It is in evidence also that the train was three hundred feet away when the automobile reached the railway track, and that both the train and the automobile were traveling at the same rate of speed. This being so, the automobile had time not only to cross the track before the train reached the crossing, but to get nearly three hundred feet away before the train would actually reach it. I can see no reason, therefore, for holding, as a matter of law, that the driver of the automobile was negligent in attempting to cross the track ahead of the train. To my mind, it was clearly a question for the’ jury, and that the trial court very properly submitted the question to them. The judgment should be affirmed.

Chadwick, J., concurs with Fuller ton, J.