50 Wash. 619 | Wash. | 1908
These two actions arose out of the same occurrence, and may be disposed of in one opinion. One was an action brought by Alma Cable, as administratrix of the estate of Rufus E. Cable, who was killed by a collision with the cars of the respondent at an interurban railway crossing, and the other was by Sadie Cable, a minor, brought by her guardian for injuries sustained at the time of said accident. Each case was withdrawn from the jury,.and judgment of dismissal entered by the court.
The facts were about these: Respondent operates an electric railway between Spokane, Washington, and Cceur d’Alene, Idaho. Upon its line is a station known as Spokane Bridge, located eighteen miles east of Spokane. Rufus Cable lived near this station. On the day of the accident he was to take his daughter, appellant Sadie Cable, aged seventeen years, to this station, where she was to board the train of respondent for Spokane. The train which caused the accident is known as the “Flyer,” and does not make stops at this station. On the day in question it was late, and a special had gone by somewhere near the time that the Flyer usually passed Spokane Bridge. Prior to the coming of the train, Cable and two daughters and another person were driving about the neighborhood in an' open buggy. When the train was about half a mile from the station of Spokane Bridge, these people were in their buggy visiting with a neighbor
Appellants claim that the people in the buggy supposed the train to be the local, and that it would stop at the station. Sadie Cable testifies that she looked when they were some distance from the crossing, and did not see the train coming. There was evidence of the presence of certain freight cars upon the side track, and of certain buildings, cord wood, and small trees which, to a certain extent,‘obscured the view. The evidence showed, however, that all these parties knew that the train was coming and that, if the horse had been stopped shortly before reaching the track, they could have both heard and seen the approaching train.
It is contended by appellants that respondent was negligent in running its train at too high a speed, and in not whistling or sounding bells or otherwise giving suitable warning of its approach. There was considerable conflict in the evidence as to these matters, but assuming that the railway company was negligent, we will take up the question of contributory negligence, which formed the basis of the trial court’s action in dismissing the cases. From the evidence introduced by appellants we can see no escape from the conclusion that the decedent and his daughter, one of the appellants herein, were chargeable with contributory negligence. It is the rule in this as in most states that a person about to cross the track
There is a suggestion that the appellant Sadie Cable is not chargeable Avith contributory negligence, even though her father may have been, inasmuch as she was not driving the horse and had no control thereover. Ordinarily where one rides in a vehicle with the driver thereof and is injured by the negligence of a third person, to Avhich negligence that of the driver contributes, this contributory negligence is not imputable to the passenger, unless said passenger has, or is in a position to have and exercise, some control over the driver
The judgment of the superior court is affirmed.
Fullerton, Crow, Rudkin, and Dunbar, JJ., concur.