97 Wash. 581 | Wash. | 1917
In this action plaintiff sought to recover damages for the destruction of his automobile through a collision with one of defendant’s trains at the crossing at Willow Springs station on defendant’s electric railway line.
Plaintiff’s evidence shows that, at the point in question, the railway track runs from north to south, approaching the crossing at a down grade of a little over two per cent. The public highway runs from east to west, approaching the crossing at a down grade of about two and one-half per cent. The highway right of way is about forty feet wide, with the narrower traveled roadway along the middle. Immediately north of the highway right of way, the ground rises in a considerable hill or plateau, necessitating a deep cut for the railway line for some distance to the north, from which cut the railway tracks emerge approximately at the northerly boundary of the highway right of way. A switching track lies a few feet west of the main track and joins it about 175 feet north of the crossing. The space between the rails and between the two tracks immediately at the crossing is planked for a distance north and south of about 16 feet. At the time of the accident, a freight car was standing on the switch just south of the crossing, the north end extending two and one-half feet over this planked roadway. At that time, September 4, 1915, there was a thick growth of Chinese lettuce and other vegetation, four or five feet high, on top of the banks of the cut. The trial was in March, 1916, at which time this growth, had disappeared. From measurements taken a few days before the trial, it appears that a man standing in the middle of the roadway at a point twenty feet east of the east rail of the main railway track could see another man for a distance of 175 feet north on the railroad; standing at a point fifteen feet east from the same rail, he could see the other man for a distance of 250 feet north; standing ten feet from the rail, he could see the other man for 100 feet north; standing eight feet from the rail, he could see the other man for only 260 feet, because of the coincidence of a line of telegraph and
Plaintiff, a farmer, resided a short distance east of the railway track and south of the highway. He left his home in his automobile at about 2:30 in the afternoon. He saw the regular train pass about ten minutes previously. He entered upon the highway a few hundred feet east of the railroad crossing and proceeded toward the crossing at a speed of about seven to ten miles an hour till the front of his car was within about fifteen feet of the east rail of the main track. He himself was about twenty feet from the track. He then reduced speed to one mile an hour or less. He said, “I was just creeping along.” He testified that from there on, proceeding at this slow pace, he was looking for trains practically all the time, only turning his eyes ahead to. see where he was going and avoid the car on the crossing. He neither saw nor heard any train till the front of his automobile was about six inches from the east rail of the main track, when he first saw the train, a special, coming rapidly through the cut from the north at a distance of between 100 and 175 feet. He said, “It was too late for me, at the time, to stop and reverse, in case I had trouble to shift my engine, so I proceeded on; I thought I had time to clear the track.” And again, “I gave her all the juice I had and I took it in a jump.” The train struck the rear end of the automobile, throwing it
At the close of plaintiff’s evidence, the trial court granted a nonsuit on defendant’s motion on the ground of contributory negligence, and dismissed the action. Plaintiff appealed.
Appellant contends (1) that the accident was caused solely by respondent’s negligence; (2) that appellant was not guilty of contributory negligence, and (3) that, in any event, the cause should have been submitted to the jury under the rule of last clear chance.
The evidence clearly shows that respondent was guilty of negligence. To run a train through this deep cut debouching immediately upon a much used public crossing, where any adequate view of the track from the roadway was much obstructed, at anything like fifty miles an hour, with no warning save the faint sound of a whistle just an instant before reaching the crossing, was palpable negligence.
It is almost equally clear that appellant was not guilty of contributory negligence as a matter of law. It is argued that he could have looked over the elevation from the higher part of the highway and so observe the approach óf the motor pantographs above the vegetation. But warning from
The rule of last clear chance is not involved. If appellant
The sole debatable question of fact presented by the evidence now before us is the question of contributory negligence. That, as we have seen, was a question for the jury under proper instructions.
The judgment is reversed, and the cause is remanded for a new trial.
Mount, Parker, Fullerton, and Holcomb, JJ., concur.