17 Wn.2d 548, J.W. HENDRICKSON, Appellant, v. UNION PACIFIC RAILROAD COMPANY et al., Respondents
[No. 28523. En Banc. Supreme Court April 19, 1943.]
J.W. HENDRICKSON, Appellant, v. UNION PACIFIC
RAILROAD COMPANY et al., Respondents.«1»

[1] TRIAL - TAKING CASE FROM JURY - SUFFICIENCY OF EVIDENCE. A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of plaintiff's evidence and all inferences reasonably to be drawn therefrom, and requires that the evidence be interpreted most strongly against defendant and most favorably to plaintiff; and even though plaintiff's evidence is in some respects unfavorable to him, he is not bound thereby, but is entitled to have the case submitted to the jury on the basis of the evidence most favorable to his contention.

[2] RAILROADS - OPERATION - ACCIDENTS AT CROSSINGS - SIGNALS -STATUTORY PROVISIONS. Under Rem. Rev. Stat., § 2528, it is a misdemeanor for a locomotive engineer to fail to ring his bell or sound his whistle at least eighty rods from any place where the railway crosses a highway, or to fail to continue the same until the locomotive has crossed the highway; and a noncompliance with this statute is negligence.

[3] SAME - ACCIDENTS AT CROSSINGS - MUTUAL RIGHTS AND DUTIES. The rights of a railroad company and the traveling public in the use of a highway at a grade crossing are reciprocal, except that the former has the superior right of passage.

[4] SAME - CARE REQUIRED AT CROSSINGS - UNUSUAL CONDITIONS. As a general rule, a railroad company, in the conduct of its ordinary business, has the right to stop its train across a highway and permit it to remain thereon for a reasonable length of time and is not required to station guards or place lights or signals to warn travelers on the highway of the presence of the train; however, the rule is not absolute, and the company may be found negligent under such circumstances if the existing situation is such that its employees, in the exercise of reasonable care, would have known that the train was such an obstruction that the driver of an automobile properly equipped with lights, driving at a reasonable rate of speed, and exercising ordinary care for his safety, would be liable to collide with it.

«1» Reported in 136 P. (2d) 438.

[4] See 15 A.L.R. 901; 56 A.L.R. 1114; 99 A.L.R. 1454; 44

Am. Jur. 740.

HENDRICKSON v. UNION PAC. R. CO. 549
Apr. 1943] Statement of Case.

[5] SAME - ACCIDENTS AT CROSSINGS - NEGLIGENCE - QUESTION FOR JURY. In an action for personal injuries sustained when the driver of an automobile collided with a train stopped across the highway, the negligence of the railroad company was for the jury, and it was error to sustain a challenge to the sufficiency of the plaintiff's evidence, where, from such evidence, the jury might have found that no whistle was sounded or bell rung as the train approached the crossing, that there was no reasonable necessity for the train to stop at that particular place, and, in view of the darkness and fog, the trainmen should have realized that one properly operating an automobile along the highway might run into the train.

[6] SAME - ACCIDENTS AT CROSSINGS - CONTRIBUTORY NEGLIGENCE -TRAIN ON CROSSING. As a general rule, the actual occupancy of a crossing by a train in itself supersedes all other warnings and gives actual notice of its presence, and the driver of an automobile which collides with it is, as a matter of law, guilty of contributory negligence which is the proximate cause of the collision; however, the rule is not absolute, and there may be cases where, because of poor visibility or other conditions, reasonable minds might differ as to whether the driver exercised the proper amount of care, and, in such cases, the question becomes one for the jury.

[7] SAME - CONTRIBUTORY NEGLIGENCE - QUESTION FOR JURY. In an action for personal injuries sustained when the driver of an automobile collided with a train stopped across the highway, held that the contributory negligence of the driver was, under the evidence, one for the jury.

[8] SAME - CONTRIBUTORY NEGLIGENCE - APPROACH TO CROSSING -STATUTORY PROVISIONS. Rem. Rev. Stat., Vol. 7A, § 6360-104, requiring motorists approaching a railroad crossing to reduce their speed so that they may come to a complete stop not less than ten feet from the track in the event of an approaching train, does not apply to the situation that exists after the train has gotten across the highway. ROBINSON, BEALS, STEINERT, and JEFFERS, JJ., dissent.

Appeal from a judgment of the superior court for Lewis county, Nevins, J., entered May 14, 1941, upon sustaining a challenge to the sufficiency of the evidence at the close of plaintiff's case, dismissing an action for personal injuries. Reversed.

550 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

J. M. Ponder and J. H. Jahnke, for appellant.

Roy F. Shields and Hayden, Merritt, Summers &Bucey, for respondents.

GRADY, J. -

J. W. Hendrickson brought this action against the Union Pacific Railroad Company and Frank L. Blankenship and Claude Sweem, the conductor and engineer, respectively, of the train involved, to recover damages for injuries sustained by him as the result of coming in contact with one of its trains. At the close of the evidence submitted by the plaintiff its sufficiency was challenged by the defendants, which challenge was sustained. The plaintiff filed a motion for a new trial which the court denied. Judgment of dismissal was entered, from which this appeal is taken.

The challenge to the sufficiency of the evidence made by the defendants was twofold: (1) That no act of negligence on the part of any of the defendants was shown; and (2) that the evidence submitted by the plaintiff established that acts of negligence on his part contributed to, and in fact caused, the injuries sustained by him. The oral decision of the trial judge assumed that there was some evidence tending to show negligence on the part of the defendants, but he based his ruling on the contributory negligence of the plaintiff. The judgment of dismissal is general, and, as both grounds for dismissal are urged in support of the judgment, we shall review them both.

[1] In reviewing a judgment of dismissal of this kind and in determining whether there is any evidence of the negligence of a defendant to be submitted to the jury, or whether the evidence of a plaintiff shows conclusively that he was guilty of such contributory negligence as will bar a recovery, it is incumbent upon us to have in mind the rules announced in Lindberg v. Steele, 5 Wn. (2d) 54, 104 P. (2d) 940:

HENDRICKSON v. UNION PAC. R. CO. 551
Apr. 1943] Opinion Per GRADY, J.

"A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. [Citing cases.]

"In the determination of such challenge or motion, even though the plaintiff's evidence is in some respects unfavorable to her, she is not bound by the unfavorable portion of such evidence, but is entitled to have her case submitted to the jury on the basis of the evidence which is most favorable to her contention. [Citing cases.]"

The material facts, so far as are necessary for our consideration of this case, are substantially as follows: The main line of the respondent railroad company runs in a northeasterly direction out of Centralia. Two miles north of Centralia there is a branch line running from Wabash junction on the main line to a place called Tono. A highway runs north from Centralia, crosses the main line and, at about two thousand feet beyond, crosses the branch line. Both crossings are at grade. There is considerable traffic over the highway, but the branch line was used infrequently. The appellant had never seen a train at the branch crossing, although he had traveled the highway often for several years in going to and from his home. There were signals at the main line crossing, but none at the branch line crossing.

On November 2, 1940, at 5:35 p. m., a train, consisting of a locomotive, twenty-three empty gondola cars, and a caboose, left Centralia for Tono. Each gondola car is forty feet long. The distance from the bottom of the bed to the railroad rails is thirty-one inches, and the sides are at least six and a half feet high. The gondolas are painted black. Under the bed of each car are rods, air chambers, and cylinders.

As the train was proceeding along the branch line,

552 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

it was necessary for the. conductor on the caboose to check the numbers of some cars on a siding, which were to be picked up on the return trip, and, finding it difficult to do so from the moving train, he caused a stop signal to be given. The train came to a stop, with the locomotive and three cars clear of the road and the fourth right on the road crossing. At the time, the head brakeman was standing between the gangway and the engine tank, and the rear brakeman was on the caboose. The conductor was on the ground at the rear of the caboose. There was a heavy fog in the area of the two crossings. No bell was rung or whistle sounded, as provided by Rem. Rev. Stat., § 2528 [P. C. § 9091]. There were no lights or other means of warning to the traveling public on the highway of the presence of the standing train. In what was estimated to be less than a minute after the train came to a stop, the collision hereinafter referred to occurred.

The appellant, driving a Ford sedan, with headlights and four-wheel brakes in good condition, left Centralia close to six o'clock in the afternoon. It was then dark and very foggy in patches, with the intensity increasing as he advanced. As he approached the main line crossing, he rolled the car window down, and, not hearing the signal bell and not seeing any lights, he crossed the track. He then proceeded slowly, driving on the righthand side of the road by keeping his headlights tilted down so that he could see the vegetation along the road.

Plaintiff knew of the presence of the branch line crossing, but he was unable to tell at any time just how far it was ahead of him. He was looking for a train because he always took that precaution at all railroad crossings. He located a house, referred to as the shingle weaver's, by reason of its window lights, and he came almost to a stop. He knew this house was

HENDRICKSON v. UNION PAC. R. CO. 553
Apr. 1943] Opinion Per GRADY, J.

about one hundred. feet from the crossing. His lefthand car window was rolled down. He listened, but he did not hear the train or any bell or whistle, and did not see it. He had heard the sound of bells and whistles of trains on this track before this occasion, and both could be heard for quite a long distance. At this point, he had slowed down to about five miles an hour. He then proceeded as before. He estimated his speed had reached twelve to fifteen miles an hour, and, when about fifteen or twenty feet from the track, his lights shone sufficiently through the fog so that he saw the gondola standing across the road. He applied the brakes and he tried to swing his car to one side, but he could not prevent the collision.

It is not clear from the record just when the appellant rolled down the window of the car after he crossed the main line track, or if it had been rolled down again before he reached the shingle weaver's house. What effect a closed window would have on his ability to hear a bell or whistle of the approaching train, if either had been sounded, does not appear. Nor is it clear just the rate of speed at which appellant traveled after he crossed the main line track and until he reached a point within one hundred feet of the branch line crossing, but it may be inferred that it was quite slow in view of the darkness and the fog.

Applying the principles above referred to, we are of the opinion that there was sufficient evidence of negligence on the part of respondents to have justified the court submitting the case to the jury.

[2] It was the duty of respondents, when approaching the highway, to comply with Rem. Rev. Stat., § 2528, which is as follows:

"Every engineer driving a locomotive on any railway who shall fail to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded at least eighty rods from any place where such

554 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing of such bell or sounding of such whistle until such locomotive shall have crossed such road or street, shall be guilty of misdemeanor."

A noncompliance with this statute is negligence. McKinney v. Port Townsend & P. S. R. Co., 91 Wash. 387, 158 Pac. 107; Cline v. Northern Pac. R. Co., 123 Wash. 86, 211 Pac. 878.

[3, 4] The rights of a railroad company and the traveling public in the use of a highway at a grade crossing are reciprocal, except that the former has the superior right of passage. The railroad company, in the conduct of its ordinary business, has the right to stop its train across the highway and permit a car to remain thereon for a reasonable length of time, and, if there are no unusual circumstances, it is not chargeable with negligence if guards are not stationed, or lights or other signals are not placed, so as to warn travelers on the highway of the presence of the train or car thereon. The rule is based upon the idea that the presence of the train or car on the crossing is notice to a traveler on the highway, such as the driver of an automobile, of such obstruction, and that those in charge of the train have the right to assume, or are justified in assuming, that one driving an automobile at night will have such lights and drive at such rate of speed as will enable him to see such an obstruction and avoid a collision.

The rule is not absolute and unqualified under all circumstances, and the railroad company may be found to be negligent in stopping and standing its train or car on a highway crossing without giving some kind of warning to the travelers thereon of the presence of the obstruction if it is found that its employees, in the exercise of reasonable care, would have known that,

HENDRICKSON v. UNION PAC. R. CO. 555
Apr. 1943 ) Opinion Per GRADY, J.

on account of the darkness or fog, or both, the train or car upon the crossing was such an obstruction that the operator of an automobile properly equipped with lights, driving at a reasonable rate of speed and carefully operating the same and exercising ordinary care for his safety, would be liable to collide with it.

It must take into consideration atmospheric conditions, such as fog, the nature and extent of the darkness, the ability and likelihood of travelers to become aware of the obstruction, the nature and extent of the use of the highway by the public, the length of time the highway is to be obstructed, the infrequency of the use of the railroad and the passage of trains over the highway, the necessity for the stopping and standing on the highways, and, perhaps, other factors, according to the existing situation, and to exercise a measure of care and prudence commensurate with the dangers involved to warn the traveling public of the presence of the obstruction. 44 Am. Jur., Railroads, p. 740, § 501. St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A. L. R. 1110; Gage v. Boston & M. R. R., 77 N. H. 289, 90 Atl. 855, L. R. A. 1915A, 363; Trask v. Boston &M. R. R., 219 Mass. 410, 106 N. E. 1022; Richard v. Maine Central R. Co., 132 Me. 197, 168 Atl. 811; Prescott v. Hines, 114 S. C. 262, 103 S. E. 543; Elliott v. Missouri Pac. R. Co., 227 Mo. App. 225, 52 S. W. (2d) 448; Olson v. Denver & R. G. W. R. Co., 98 Utah 208, 98 P. (2d)944.

The foregoing cases and others on this branch of the law denying recovery have been decided from these viewpoints: (1) no negligence on the part of the railroad company or (2) that the presence of the train or car upon the crossing, whether moving or standing, in itself supersedes all other warnings and gives actual notice by its own presence, from which it follows (a)

556 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

that, in the absence of a statutory requirement, no duty is owing to the traveling public to further warn it of the presence of the train or car, and (b) that a traveler who runs into such a train or car is guilty of contributory negligence as a matter of law. Among the cases are included our cases of Ullrich v. Columbia & Cowlitz R. Co., 189 Wash. 668, 66 P. (2d) 853; Reines v. Chicago, M. St. P. & Pac. R. Co., 195 Wash. 146, 80 P. (2d) 406; and Webb v. Oregon-Washington R. & N. Co., 195 Wash. 155, 80 P. (2d) 409.

One might infer from reading these cases, those cited therein and others, that, whenever a train or car, whether moving or standing, occupies a highway crossing, there can be no liability to the one who is using the highway and collides with the obstruction, because, in most of them, no exception to the rule adopted was suggested. But that such is not an unqualified rule is pointed out in Schofield v. Northern Pac. R. Co., 4 Wn. (2d) 512, 104 P. (2d) 324, in which case it was said, p. 516:

"Many of the cases which hold that the railroad company was not liable as a matter of law, either because there was no negligence or because the driver of the colliding automobile was guilty of contributory negligence, call attention to the fact that there was nothing in those cases to indicate an unusual or extrahazardous situation, nor anything in the nature of a trap. The cases of [citations] are a few of the cases which recognize such a limitation upon the general rule. No case, so far as we are informed, holds that, where an automobile crashes into the side of a railroad train on a crossing, the railway company would not be liable under any and all circumstances."

On page 514, it is further stated:

"It is a general rule that, when a railroad train actually occupies a crossing, that in itself supersedes all other warnings and gives notice by its own presence [citing the Reines and Webb cases]. . . .

HENDRICKSON v. UNION PAC. R. CO. 557
Apr. 1943] Opinion Per GRADY, J.

"There is an exception to the general rule where the situation is unusual or extrahazardous, or constitutes a situation in the nature of a trap."

Although the case of St. Louis-San Francisco R. Co., supra, applies the general rule, it recognizes that a situation may arise where the rule does not apply, as it is said, p. 615:

"The rule sanctioned by the authorities to which we have referred is that, in order to charge the railroad with negligence in such a case, it must be shown that defendant & employees in charge of the train, in the exercise of reasonable care, ought to know that on account of darkness the cars upon the crossing are such an obstruction that people traveling along the highway in automobiles properly equipped with lights and carefully operated at a reasonable rate of speed would be likely to come into collision with them; in other words,. the employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them."

In 44 Am. Jur. 741, § 501, under the subject of railroads, the following statement is made:

"However, the railroad company's duty is not necessarily discharged under all circumstances if it fails to give warning in some form of the presence of the obstruction. The atmospheric conditions, obscurity and darkness of the crossing, the length of time it is obstructed, and the nature of the highway, may require that warning be given if the company is to be found in the exercise of due care, but in order to charge a railroad company with negligence in leaving an unlighted train across the highway in the night so as to make it liable for injury to an automobilist traveling on the highway running against it, the employees in charge of the train must, in the exercise of reasonable care, have knowledge that on account of the particular facts or situation involved people traveling along the

558 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

highway in automobiles properly equipped with lights, and carefully operated at reasonable speed, would be likely to come into collision with the cars unless lights are placed on them to warn of their presence."

In recognizing what may be said to be an exception to the general rule, some of the cases refer to "some peculiar environment," or "where the situation is unusual," or "extrahazardous," or "constitutes a situation in the nature of a trap," as a basis upon which to found liability or to excuse a claim of contributory negligence without defining or outlining what would constitute such a situation. The Schofield case indicates that the decision was based upon the "trap" doctrine, which arises out of a situation where certain factors or course of conduct misleads or deceives the user of the highway. Although the claim in this case is, to some extent, founded upon the trap doctrine, we do not think the evidence sustains this theory, but the question is whether, under all the facts and inferences to be drawn therefrom, the respondents were negligent in.causing the train to enter and stand upon the highway crossing while the conductor secured the numbers of the cars the proximate cause of the injuries sustained by the appellant.

[5] It seems to us that such a situation is here presented that a trier of fact might well find that it was unusual and extrahazardous, and even deceptive, and one created, in a great measure, by the respondents, or, at least, reasonable minds might differ thereon. A trier of fact might conclude that the respondents were negligent if it was found that no whistle was sounded or bell rung as the train approached the crossing, that it was not necessary for the train to occupy the crossing in order that the conductor secure the car numbers, and, in view of the darkness and the fog, the trainmen

HENDRICKSON v. UNION PAC. R. CO. 559
Apr. 1943] Opinion Per GRADY, J.

should have realized that one driving an automobile along the highway `at the proper speed, with proper lights and due regard for his own safety, might run into the train if it went onto the crossing and stood there.

We do not want to be understood from what has been said in this opinion that we are in anyway overruling or modifying any of our decisions on this subject, because we do not think this decision conflicts with them. We think they are not applicable to the factual situation presented by the record in this case.

[6] The question of contributory negligence of appellant, as a matter of law, must next be considered. Many of the courts considering cases similar to this one have adopted the view that the actual occupancy of the crossing by a train in itself supersedes all other warnings and gives actual notice of its presence, and that the driver of an automobile must have such lights and drive at such speed, in view of existing conditions, as will enable him to become aware of the obstruction and avoid a collision; and, therefore, if he does collide with the obstruction, he is guilty of contributory negligence as a matter of law, and such negligence, as a matter of law, is the proximate cause of the collision. Our own cases have followed this general trend of authority. Allison v. Chicago, Milwaukee & S. P. R. Co., 83 Wash. 591, 145 Pac. 608; Keene v. Pacific Northwest Traction Co., 153 Wash. 310, 279 Pac. 756; McFadden v. Northern Pac. R. Co., 157 Wash. 437, 289 Pac. 1; Dumbolton v. Oregon-Washington R. & N. Co., 186 Wash. 433, 58 P. (2d) 806. Other cases might be cited, but we think these are sufficient to show the general rule which we have adopted.

Here, again, the impression might have been conveyed that this is a rule of universal application and admits of no exception, and that, when one collides

560 HENDRICKSON v. UNION PAC. R. CO.
Opinion Per GRADY, J. [17 Wn. (2d)

with a moving or standing train on a crossing, he is guilty of negligence as a matter of law. In the ordinary case, and particularly where the visibility is good, there can be no question about this, and reasonable minds cannot differ. In those cases where the visibility is poor the measure of care on the part of the user of the highway greatly increases, but we may have situations where reasonable minds might differ as to whether the user of the highway exercised the proper amount of care under the circumstances, and, in such case, the question becomes one for the jury.

Many of the cases do not make any distinction between standing and moving trains, but we believe there can be situations where such a distinction should be made. A driver of an automobile, when visibility is poor, is much more likely to become aware of the presence of a moving train on a crossing than a train or car standing thereon because of the attendant noise and the motion itself.

Another factor we think proper to consider is the frequency or infrequency that trains use the particular railroad track and known to the user of the highway. A trier of fact might well conclude that one should be held to a greater measure of care in his approach to a railroad track which is used frequently than one that is used infrequently and upon no fixed schedule.

[7] We think, when our cases are critically examined, it will be found in each of them that the court considered the facts were such that there was no room for a difference of opinion, and that the court did not intend to convey the idea that an absolute rule applicable to all cases was being adopted. We believe that, under the factual situation we have set forth, it cannot be said, as a matter of law, that the appellant was guilty of negligence which proximately contributed to

HENDRICKSON v. UNION PAC. R. CO. 561
Apr. 1943] Opinion Per GRADY, J.

his injuries, and we are of the opinion that this question should have been submitted to the jury.

[8] It is claimed, however, that the appellant violated the provisions of Rem. Rev. Stat., Vol. 7A, § 6360-104 [P. C. § 2696-862-1, which is as follows:

" . . . Any person operating any vehicle, other than those specially mentioned above [carriage for hire, school bus, or transporting explosive substances or inflammable liquids , shall, upon approaching the intersection of any public highway with railroad or interurban grade crossing, reduce the speed of such vehicle to a rate of speed not to exceed that at which, considering view along such track in both directions, such vehicle can be brought to a complete stop not less than ten (10) feet from the nearest track in the event of an approaching train.

At the trial, when testifying, the appellant attempted to make an estimate of his speed as he approached the crossing. He stated that he had slowed down to "maybe 5 miles an hour," and that just before the collision "I don't think I was traveling over 12 or 15 miles an hour." He estimated that, when he became conscious of the presence of the gondola on the crossing, it was something like twenty feet in front of him, but he was not sure whether it was more or less; that it was too close to enable him to stop at whatever speed he might have been going. He estimated that, if his speed were twenty miles an hour, he could have stopped in thirty-five feet, but he was unable to give an estimate of the distance he could have stopped at if he had been going ten miles an hour.

It will be observed that the statute provides a rule of conduct for one approaching an intersection in the event a train is also approaching. It is designed to prevent a collision between a train and a vehicle at an intersection and to require the driver of the vehicle to be in a position to stop within a certain distance when

562 HENDRICKSON v. UNION PAC. R. CO.
Dissenting Opinion Per ROBINSON, J. [17 Wn. (2d)

he becomes aware that the train is approaching. It has nothing to do with the situation that exists after the train has gotten across the highway. In any event, the testimony. above referred to, and it is the only testimony on that point in the record, is not sufficiently definite as to speed so that it can be said, as a matter of law, that the appellant violated the statute, and, if he did so, such violation was the proximate cause of the collision.

We are therefore of the opinion that the questions of negligence of respondents in approaching and standing on the crossing without adequate warning to appellant, the contributory negligence of appellant, and that of proximate cause, were for the jury, and that the court erred in dismissing the action.

The judgment is reversed, and the cause remanded to the lower court for a new trial.

SIMPSON, C. J., MILLARD, BLAKE, and MALLERY, JJ., concur.

ROBINSON, J. (dissenting) - While I think that no negligence was shown on the part of any of the defendants, I will not prolong this dissent - which will be necessarily long in any event - by discussing that feature of the case. Nor do I think it necessary to do so, since I am convinced that the trial court's ruling, that the plaintiff's own evidence established his contributory negligence, must be affirmed, unless we are prepared to ignore the great weight of authority throughout the courts of the country, overrule a number of our previous decisions, and abandon the reasoning of the opinions in which they were handed down. I think the majority opinion, though professing not to, does just that. At the very least, it begins a process of erosion, weakening the standards of care to be used in approaching a railroad grade crossing hitherto set

HENDRICKSON v. UNION PAC. R. CO. 563
Apr. 1943] Dissenting Opinion Per ROBINSON, J.

up by court decisions and statutes, and this, at a particularly unfortunate time. Joseph B. Eastman, Federal director of defense transportation, has recently reported that, despite the great curtailment of travel by automobile, about two thousand persons were killed, and four thousand six hundred injured, at railroad crossings in 1942, a considerable increase over 1941. I take it that the accident involved in this case was a grade crossing accident, although the appellant was not injured by a moving train, but by crashing into a standing one. It is a matter of common knowledge that a railroad grade crossing presents both dangers.

This is not a case where a judgment was entered notwithstanding the verdict of a jury, nor yet one where a decision was rendered after hearing the defendant's evidence. The trial judge was not called upon to resolve any conflicts in testimony, nor to deal with any disputed facts, nor did he presume to do so. He decided a pure question of law, just as a court does when it rules on a general demurrer for want of facts. In that case, the facts are fixed by what the plaintiff said in his complaint. In this, they were fixed by what the plaintiff said on oath while on the witness stand.

As the trial court, in ruling upon a general demurrer for want of facts, must give the allegations of the complaint every favorable intendment, so, here, as the majority have emphasized by a quotation from the case of Lindberg v. Steele, 5 Wn. (2d) 54, 104 P. (2d)940, it was the duty of the trial court to give the plaintiff's evidence its most favorable interpretation. However, I do not understand the language of that case to mean that a downright admission can be whittled away. As illustrative of what I have in mind, I think that, the plaintiff' having testified that he was practically stopped when opposite the shingle weaver's house, and, at another point, that he was then making

564 HENDRICKSON v. UNION PAC. R. CO.
Dissenting Opinion Per ROBINSON, J. [17 Wn. (2d;

but five miles per hour, the second statement should be used in appraising his care or want of it, that statement being the most favorable to him under the facts of this case, as will later appear. But I do not think the rule stated in Lindberg v. Steele means that, in this case, the trial judge or the jury would have been warranted in coming to the conclusion arrived at by the majority and stated by them as follows:

"Plaintiff knew of the presence of the branch line crossing, but he was unable to tell at any time just how far it was ahead of him."

We will leave that matter to the appellant's evidence, which will be quoted rather extensively in order to avoid erroneous interpretations which are prone to creep in when the writer of an opinion attempts to state evidence in narrative form. Furthermore, since this evidence will not be quoted in the exact order given, but in a way that will tell the story of the collision in chronological order, reference will be made to the page and line in the statement of facts from which each detached quotation is made. All italics used are supplied.

There is much evidence in the record, and it is stressed in the majority opinion, to the effect that appellant used extreme care in negotiating the main line tracks which he crossed about two thousand feet before he came to the crossing where the collision occurred. It seems to me that this evidence has no substantial probative value. That a motorist scrupulously regarded a red light in crossing Fourth avenue does not even tend to prove that he did not run through the red light in the very next block. It is with the appellant's care or lack of it in approaching the crossing where the collision occurred that we are concerned, and the inquiry into that need not go further back than the "shingle weaver's house."

HENDRICKSON v. UNION PAC. R. CO. 565
Apr. 1943] Dissenting Opinion Per ROBINSON, J.

First, and by way of introduction, it should be pointed out that appellant was familiar with the highway, its surroundings, and conditions. He knew of the presence of the railroad tracks and the use that was made of them. He also knew that there was no bell or other signal there to indicate their location.

"Q. Of course, you have lived up there about five years and you know there is a railroad track there?A. I do. Q. And you know that sometimes trains do run up there? A. Yes. . . . [St. 40, line 9] Q. Of course, you had been driving over that crossing time and time again all the time you have lived up there? A. Yes. Q. Several times a week undoubtedly? A. Yes. . . . [St. 46, line 131 A. Indeed, I came up to that car. . . . There was no bell to see or hear . . . [St. 62, line 6]"

Second, he knew that there was danger in crossing.

"Q. And you know that trains do sometimes run up there? A. Yes. Q. And there is danger of crossing over there? A. Yes. . . . [St. 40, line 12] Q. . . . You didn't anticipate finding any train on that track, did you? A. You never know. . . . [St. 46, line 7] Q. You didn't expect to see one there, did you? A. Well, I slowed down right there and expected one any time." [St. 61, line 11]"

Third, he had come almost to a standstill (at one place, he says he had reduced his speed to five miles per hour) when he saw a light in the shingle weaver's house, and knew then just where the crossing was.

"Q. Now at the time you almost came to a standstill, you say near some shingle weaver's house, I want you to tell the jury now how far that is from the crossing where the accident occurred. A. A little over 100 feet, I believe; over 100 feet or more, something like that. . . . [St. 22, line l] Q. You didn't anticipate finding any train on that track, did you? A. You never know. I didn't know exactly where the tracks were exactly until I came to the shingle weaver's house, then I knew just where I was. . . . [St. 46, line 7]"