106 Wash. 299 | Wash. | 1919
This action was brought to recover for damages to an automobile truck, occasioned by a collision between the truck and a switch train then being operated by appellant. The facts, as shown at the trial below, are substantially as follows:
The collision occurred at about 2:30 p. m. on December 18, 1917, at the intersection of Chestnut street with appellant’s main line spur track, in the city of Bellingham. The truck was being operated by an
The driver testified that he was thus moving at a speed of about three to three and a half miles per hour; that he constantly looked in the direction from whence the train came, but saw and heard nothing of it; that, because of a building which obstructed his view, he could see only a distance which he estimated at twenty-five to thirty feet down the track in the direction from which the train came; that, as he approached the track upon which the train was operating, he saw a box car shoot out from the curve; that he immediately applied the brakes and could have stopped the truck instantly, but that it was raining and the ground was wet and slippery; that the truck skidded onto the track, and before he could reverse his engine, the car struck the truck, pushing it a distance of some twenty-five feet against a pile of timbers and there crushing it.
The truck projected to the rear of the driver’s seat a distance of fourteen feet, and the undisputed evidence of a civil engineer, who made actual measurements, is to the effect that the driver, at a distance of twenty-five feet from the first rail of the track upon which the train was moving, could see past the ob
When the front end of the box car was from sixty to eighty feet from the crossing, the approaching truck was seen by the brakeman and the fireman, both of whom gave the engineer a signal to stop; and the brakeman also shouted to attract the attention of the truck driver, and continued to signal and shout until the collision occurred. The engineer, immediately on receipt of the signal, turned on the sand and the emergency brakes, but because of the slippery condition of the rails and the surge forward of the 240,000 pounds of oil in the tank cars, the wheels on the engine and tender slipped or slid, the sand did not take effect, and the train could not be brought to a stop until the truck was crushed against the timber pile as before stated.
It is admitted that the air was not coupled up on the train, and the evidence is undisputed that in switching operations that is impracticable and is never done. It also appears that the spur track on which the accident happened was not in constant use, though it was usual for the switching crew to go in there every day about five o ’clock p. m., and more or less frequently at other hours. There is also testi
The negligence charged in the complaint is that appellant failed to keep a watchman at the crossing to give the public warning, and that the train was moving at an excessive rate of speed. The answer raises the issue of contributory negligence on the part of the truck driver. Appellant moved for a nonsuit at the close of respondent’s case in chief, entered a motion for a directed verdict at the close of all of the testimony, and after the rendition of the verdict moved for judgment non obstante veredicto.
The trial court properly instructed the jury that the law did not require appellant to employ a switch-man at the crossing in question, and we fail to find any evidence of excessive speed. But as appellant did not stand upon its motion for a nonsuit at the close of respondent’s case, we will not discuss these questions.
One who approaches a railway crossing on a public highway is as'much under the duty of keeping á lookout as is the railway company; and with knowledge that the railway company has the right of way and cannot instantly stop its trains to avoid accidents, it becomes his duty to use every means which a reasonably prudent person would use under the existing circumstances to avoid a collision. Did the driver of the truck perform this duty? He says he did. But
The force of this conclusion was sought to be avoided in the trial court by invoking the last clear
The trial court should have granted appellant’s motion for a directed verdict.
The judgment is reversed, with directions to dismiss the action.
Chadwick, C. J., Main, Mackintosh, and Mitchell, JJ., concur.