The Train That Didn't Whistle

Frank Ladouceur, appellant, vs. Northern Pacific Railroad Company, respondent. No. 287.—The appellant sued the respondent for damages for injuries caused by the negligence of the railroad company. At the close of plaintiff's testimony the court granted a motion for a non-suit on the ground that his evidence showed that he was negligent, and that his negligence contributed to the injury. The plaintiff was a youth 21 years of age, and at the time he was injured was driving a team and wagon on a street in the city of Seattle, and was injured by a collision at the public crossing with the train of defendant on the afternoon of August 8, 1890. The street was a much-travelled public highway. The railroad runs north and south, and the street running northwest and southeast crosses it at a sharp angle. The train and plaintiff were going in the same general northerly direction toward the city. There was testimony to show that the plaintiff, at the close of his day's work, between 5 and 6 o'clock in the afternoon, left a brickyard about a half mile from the crossing, and from there was driving home towards the crossing at a slow walk. On his wagon was a low wood-rack twelve feet long. He was seated on the right-hand side of the wood-rack between the two wheels, the customary place for the driver of a wagon carrying that kind of a rack, so that he could conveniently attend to the brake. Commencing at a point about 65 feet from the track at the crossing was a decline extending down to the crossing. Before this point 65 feet from the track is reached, the view of the track to the south was somewhat shut off by buildings along it and the track to the north of the crossing can be seen for only a few feet. After beginning the descent of this decline the view to both the south and to the north was very limited on account of the embankments and the fences of the railroad, and weeds and bushes growing along the side of the railroad. It appears by the testimony that it was a freight train behind time and running at a high rate of speed, which caused the injury. That no whistle was blown, or bell rung until it was right at the crossing. The speed of the train was so great as to excite comment from persons who saw it going. Testimony to this effect was admitted without objection. The failure to blow the whistle until within a few feet of the crossing was also noticed by certain employees of the company, who were section hands working in the vicinity, and was commented on by them before it was known that anyone had been injured. The testimony as a whole, if true, showed culpable negligence on the part of the employees of the railroad company in charge of the train in approaching so dangerous a crossing under such a high rate of speed, and especially in not seasonably giving warning to people who might be traveling in the vicinity, by blowing the whistle or ringing the bell.

The respondent contends that the plaintiff before he attempted to cross the track should have stopped to listen for the sound of an approaching train, and failing to have done so he was guilty of contributory negligence and cannot recover.

This question was twice before the supreme court of the territory in the case of N.P.R.R. Co. vs. Holmes, 3 Washington Territory 202 and 543. When first before the court it was held that it was the duty of the party injured to have stopped. A petition for a rehearing was granted, and later, there having been a change of the members of the court meanwhile, the question was decided otherwise under the facts of that case. There were dissenting opinions upon both hearings. But in the opinion last rendered the court says, "that it may or may not be the party's duty to stop, look and listen is dependent on the status of each case."

It was conceded that there might be cases where it would be a party's duty to stop and listen, and I am well satisfied that such should be the rule under some circumstances.

As to this particular case there was testimony to show that extending from the top of this incline, which was sixty-five feet distant from the track, was a strip of several hundred feet in length where the road was nearly level, and there was a conflict in the testimony as to how far a train could have been seen from this level street coming from the south, some of the witnesses placing the distance at a mile or so, others at a few hundred feet, and some saying it could be seen only a little ways. It seems the plaintiff did not look to the south while passing along this strip, nor until he started down the incline, and here again the testimony was conflicting as to how far a train could be seen coming from the south. There is some confusion also because some of the witnesses spoke of the distance the track could be seen before the view was shut off by shrubbery, etc. The train being higher than the track could have been seen for some distance further. But there was testimony to show that from no point along this incline could the train be seen for more than two or three hundred feet therefrom. The testimony of the plaintiff shows that he had crossed the railroad at this point a good many times within the three months immediately preceding the accident; that whenever he had seen a train in that vicinity before he had always heard them ring a bell or blow a whistle when they were approaching, and before they got close to the crossing; that he looked to the south for a train while going down the incline, but that his view was obstructed by a passing wagon; that he listened for one but did not hear any and that he did not stop; that he looked to the south again when he was about twenty feet from the crossing, and could see about 175 feet along it only, and that he could not see and did not hear any trains; that he then looked to the north and was just about to look to the south again when the engine gave the first alarm by a danger whistle; that when the whistle was first sounded the horses were across the track, the wagon was half way across it, and he was just over the middle of the track; that he immediately struck the horses and he was just on the west rail of the track when the engine struck the rear end of the wagon; that he was knocked quite a distance, had one of his legs cut off and received other injuries.

While the testimony is uncertain and contradictory in some important particulars, yet as it appears, it is a close question whether the plaintiff can escape the charge of contributory negligence. If he could have seen along the track for a long distance while on the level place before going down the incline he certainly knew it and should have looked, especially as he could not see an approaching train from the southward for any great distance from the crossing while going down the incline, and he must have known this also, as his testimony shows he was entirely familiar with the situation of the track and street in the vicinity. His counsel claims that the plaintiff did look to the southward for a train while on the level space, but we fail to find any testimony to that effect in the record. On the other hand, if he could not have seen along the track but a short distance so there would have been no object in looking while on this level place he certainly should have stopped and listened before crossing the track, unless the situation was such that he could not have heard a train any material distance therefrom if he had stopped. If there is ever a case where under other ordinary circumstances a man should stop and listen, it would be where he was unable to see the track, or an approaching train for more than a short distance, and had been so unable to see for some time before reaching the crossing. But we do not think we should say as a matter of law that the plaintiff's negligence, if he was negligent under the circumstances, contributed to the injury. The testimony is contradictory as to whether he could have seen the train from the level space, so the question as to whether he was negligent in not looking while on that place is to be determined upon the facts which are for the jury to find. As to his negligence in not stopping to listen before attempting to cross, it is doubtful from the testimony whether he would or could have heard the train had he done so.

(Concluded tomorrow.)