18 Wn.2d 49, BESSIE M. COX, as Administratrix, Respondent, v. POLSON LOGGING COMPANY, Appellant
[No. 28824. En Banc. Supreme Court May 17, 1943.]
BESSIE M. COX, as Administratrix, Respondent, v.
POLSON LOGGING COMPANY, Appellant.

In each of those cases the accident occurred on a dark, cold night; in the Ullrich case the testimony showed that a fairly heavy rain was falling, with some wind; and in the Reines case it appeared that there was a dense fog. Nevertheless, in the last cited case it was specifically declared that the general rule above stated is applicable in cases where the railroad crossing is more or less obscured by fog or other weather conditions.

To this general rule, as above expressed, there is a well-recognized exception in this state, as well as elsewhere. The exception arises in cases where the combination of circumstances presents an unusual or extrahazardous situation or constitutes a device or spectacle in the nature of a trap or one that would naturally deceive a traveler on the highway. Ullrich v. Columbia & Cowlitz R. Co., supra; Schofield v. Northern Pac. R. Co., supra: Licha v. Northern Pac. R. Co., 201 Minn. 427, 276 N. W. 813; Christensen v. Willamette Valley R. Co., 139 Ore. 666. 11 P. (2d) 1060;

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Illinois Central R. Co. v. Maxwell, 167 S. W. (2d)(Ky.)841; Hendrickson v. Union Pac. R. Co., supra.

In the Schofield case, which was an En Banc decision, this court pointed out the exception as above noted, and, further, said:

"Whether when an automobile runs into the side of a train moving over a crossing or standing thereon presents a question of fact or one of law, depends upon the particular facts of each case." The opinion in that case also rejected the proposition that, where an automobile crashes into the side of a railroad train on a crossing, the railway company would not under any set of circumstances be liable; thus recognizing that under certain conditions the railway company might be held guilty of negligence.

[2] Having in mind the general rule and the exception thereto, we look to the circumstances as shown by the evidence which the jury was entitled to consider in this case. As pointed out above, the road in the immediate vicinity of the crossing, though straight and level, extended through a heavily wooded area. The railroad track, intersecting the highway, extended through a similar area. The train was approximately thirteen hundred feet in length and, except for the locomotive and caboose, was composed of twenty-eight unlighted freight cars carrying loads extending sixteen feet upward and reaching to within forty-eight inches of the rails. On a dark night the loaded cars blended into the black roadway and surrounding scenery, and would not be readily discernible. On a rainy, stormy night it would be even more difficult for an automobile driver to distinguish the train at a distance, because of the glistening effect of his headlights upon the falling rain. On such a night, also, the occupants of an automobile would not be as readily able as on a clear, quiet night to hear the sound of a passing train, particularly if such train were moving downgrade at a speed of only ten or twelve miles an hour.

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It may be that, under this combination of circumstances alone, the general rule as expounded in the Reines and Webb cases, supra, would still apply and, as a matter of law, would absolve appellant from negligence, regardless of whether or not it gave the required warning signal by whistle and bell. But there is another factor, of singular importance, to be taken into consideration in the determination of this particular issue: Appellant had adopted a custom, or practice, of throwing a lighted flare out upon the highway as the locomotive passed over the crossing, during such seasons as that involved here. The purpose of this practice was to warn travelers on the highway of the presence of the train. The practice, though not compulsory upon appellant had nevertheless been followed regularly for two years, and the traveling public had become accustomed to it. Jensen, the driver of the automobile, and Cox both knew of this practice and on the occasion in question relied fully upon it. According to the evidence which the jury was entitled to accept as true, no flare or light of any kind was thrown upon the highway by appellant's employees on this particular trip.

In Ray v. Hines, 118 Wash. 530, 203 Pac. 929, it appears that an automobile was struck by a freight train at a street crossing where it had been customary for a switchman to give warning to travelers of the approach of a train, by swinging a lighted lantern at the crossing. There was evidence in the case from which the jury could find that no such warning signal was given on the particular occasion. Judgment for the injured plaintiff was affirmed on appeal. Announcing the rule with reference to failure to give a customary warning, this court quoted from 33 Cyc. 946:

"`Where a flagman is employed or a gate established, whether such duty is imposed by statute or not, the person in charge is bound to perform his duties with reasonable care and prudence, and a failure to do so is negligence for which the railroad company is liable.

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Where a flagman or watchman is employed at a public highway crossing, until the public has become accustomed to regard his presence or absence as one of the evidences of the approach of trains, or otherwise, it is part of the company's duty to keep a fit person there whose conduct will not be liable to mislead and deceive the traveling public; and it is the duty of the flagman or watchman to use reasonable care to know and give timely warning of the near approach of trains, not only so as to avoid a collision, but also to enable a traveler approaching a crossing, in the exercise of reasonable care, to protect himself against other accidents, and the public have a right to rely upon a reasonable performance of that duty.'"

Following the quotation, occurs the statement by this court:

"Whether the flagman be stationed at the crossing, or the custom be established of giving a warning by the men in charge of the movement of trains across the street, the result is the same. In either case the public is led to expect the warning if there be imminent danger, and the failure to give the customary warning tends to mislead and deceive. In fact, such failure becomes in effect a trap."

In Barber v. Seattle, 182 Wash. 672, 48 P. (2d) 234, in which the failure to operate a wigwag system was involved, we said:

"Testimony of this character is sufficient to take the case to the jury, under well settled authority. Even though the city might have been under no duty to install a wig-wag system, yet, having installed it and taught the public to rely upon it, the failure to operate it in a particular instance would create a trap and constitute negligence."

In the recent case of Illinois Central R. Co. v. Maxwell, 167 S. W. (2d)(Ky.) 841, it appears that the plaintiff drove his automobile into a coal car standing across a highway and suffered personal injuries. His suit against the railroad company was submitted to the jury on the issue of whether it had been customary for

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the company to have a flagman or lighted flares at the crossing to give warning of the presence of trains or cars standing across the road at night and on this occasion had not followed that custom. Discussing the rule of "customary practice and the right to rely upon it," the court of appeals of Kentucky said:

"Where it had been customary to do that [give reasonable and timely signals] and the traveler relied upon receiving such warning, the failure to give it is negligence. [Citing cases.] It is also the same principle as that applied where the railroad customarily maintained a watchman or gate at a dangerous public crossing and in a particular instance the flagman was absent or the gate open. The absence of the watchman or the open gate is an assurance of safety and the equivalent of an invitation to a traveler to proceed. [Citing cases.]"

In 52 C. J. 201, Railroads, § 1791, it is said:

"If signals are provided, although not required by statute, the public has the right to rely thereon, and the company must use reasonable care to keep them in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace."

It is true that a lighted flare thrown upon the highway from a moving locomotive does not have the fixity or permanency of a mechanical contrivance, nor does it necessarily convey the same kind or amount of warning which a flagman might be able to give; nevertheless, the principle involved in the several instances is the same so far as established custom and reliance thereon by the public are concerned.

In our opinion, the entire combination of circumstances, as narrated above, presented a question of fact, and not one simply of law, (1) as to whether the crossing was one of unusual danger; (2) as to whether the appellant upon this occasion was negligent in failing, if it did fail, to throw out a lighted flare upon the highway; and (3) as to whether or not an ordinarily

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prudent person, occupying the position of the decedent, would thereby be lulled into a false sense of security by impliedly assuring him that no train was crossing the highway and thus inviting him to proceed with his host over the crossing.

[3, 4] The second general question involved upon the appeal relates to the alleged contributory negligence of the deceased. What is herein said on this question relates solely to the decedent Cox, who was a guest in the automobile, and not to Jensen, the driver. Appellant's contention is that Cox was guilty of contributory negligence as a matter of law, defeating recovery by his estate, because he made no protest to Jensen relative to the speed of the automobile and did not call Jensen's attention to the presence of the train upon the crossing or to the two reflector signs along the highway. There is no evidence in the record from which it reasonably can be inferred that Cox knew any more definitely than did Jensen that they were in the vicinity of the crossing, or that Cox saw either of the signs or the train.

It is true that, under some circumstances, an accompanying passenger in an automobile has an obligation to warn the driver of an impending danger. On the other hand, such passenger cannot be held guilty of contributory negligence as a matter of law in failing to warn the driver unless the passenger has some degree of authoritative control over the operation of the automobile or some special knowledge of the impending danger, apart from the knowledge of the driver, or unless the driver's negligence is so manifest that it cannot go unnoticed by the passenger. Haaga v. Saginaw Logging Co., 165 Wash. 367, 5 P. (2d) 505; (on rehearing) 169 Wash. 547, 14 P. (2d) 55. The evidence in this case would not justify a holding that the failure of Cox to warn Jensen constituted contributory negligence as a matter of law. It was, at best, a question of fact for the jury.

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Our determination of the two general questions heretofore discussed disposes of a considerable number of appellant's twenty-seven assignments of error, but still leaves other questions to be decided.

Upon the third general question involved in the appeal, appellant assigns a number of errors based upon certain instructions given by the trial court, upon the refusal to give other instructions requested by appellant, and upon the refusal to withdraw from consideration by the jury certain allegations of negligence on which it is contended there was not sufficient evidence to present an issue of fact.

[5] Appellant excepted to instructions numbered three and eight as given by the trial court. Instruction number three related to the life expectancy of respondent's intestate, Cox. The ground for assigning error on this instruction is that no mortality table was introduced in evidence.

It is the law in this state that the court takes judicial notice of standard mortality tables and, where the matter is pertinent to the inquiry before it, may properly inform the jury as to the expectancy of life of the person concerned, without taking evidence on the subject. Roalsen v. Oregon Stevedoring Co., 147 Wash. 672, 267 Pac. 433.

[6] Instruction number eight advised the jury generally that, if "the operators of said train were negligent in the manner and way alleged by the plaintiff [respondent]," appellant would be liable. The allegations of negligence contained in the complaint include charges of insufficient air brakes, inadequate signal devices, failure to stop, and failure to provide suitable flares. The evidence upon these various matters was not sufficient to present issues for consideration by the jury, and the instruction was therefore technically erroneous. However, the court in a later instruction withdrew the issue of insufficient air brakes. As to the charges of inadequate signal devices and failure to

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stop, we are satisfied from a reading of the record that the jury was not in any way influenced thereby. The question of suitable flares, however, is of more serious concern in another respect and will be dealt with separately a little later herein.

[7] Appellant requested an instruction directing the jury to disregard evidence of other accidents at the crossing. The only testimony upon that subject was a voluntary remark by one of appellant's own witnesses on cross-examination wherein she stated that "there has been several accidents there." When respondent's counsel attempted to pursue the subject, appellant's attorney objected, and counsel for respondent thereupon withdrew the question which he had just propounded. That ended the inquiry upon the matter, without any further request from appellant. Under the circumstances shown, refusal to give the requested instruction at the conclusion of all the evidence was not prejudicial error.

[8] Appellant further requested the court to instruct the jury to disregard any testimony which it believed to be "contrary to the physical facts of the case." The request was founded upon the doctrine that, where the physical facts are uncontroverted and speak with a force that overcomes all testimony to the contrary, reasonable minds must follow the physical facts and therefore cannot differ. Mouso v. Bellingham & Northern R. Co., 106 Wash. 299, 179 Pac. 848; DeVore v. Longview Public Service Co., 162 Wash. 338, 298 Pac. 717; Morris v. Chicago, Milwaukee, St. P. & Pac. R. Co., 1 Wn. (2d) 587, 97 P. (2d) 119, 100 P. (2d) 19.

While the requested instruction might with propriety have been given as a precautionary admonition to the jury, the failure to give it does not, in our opinion, constitute reversible error. In all the cases wherein that doctrine was announced by this court, it was invoked as the basis for setting aside a verdict which the court itself found to be contrary to the physical facts.

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[9] At the close of respondent's final argument to the jury, appellant moved for an order of mistrial because of opposing counsel's remark that "None of the Polsons have been here in the trial of this case." It is contended by appellant that this was an indirect method of telling the jury that the Polsons were insured and hence had no interest in the outcome of the case.

We think that from any point of view the remark was improper, but we do not think it injected the question of insurance. In any event, however, we do not consider that the statement of itself constituted such misconduct as to call for the declaration of a mistrial.

We come now to what we consider the vital question relating to appellant's motion for new trial. At the conclusion of all the evidence, appellant requested the court to withdraw from the jury the issue of negligence based on the alleged failure of the appellant to give bell or whistle signals. The court refused the request, and thereafter in its instructions not only included that element of negligence as one of the issues involved, but also advised the jury that, if the appellant failed to give such signals, it would be guilty of negligence as a matter of law and would be liable in damages to anyone whose injury was a natural and proximate result thereof.

[10] Rem. Rev. Stat., § 2528 [P. C. § 9091], provides:

"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 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." The failure to give such signals, as required by the statute constitutes negligence as a matter of law.

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McKinney v. Port Townsend & P. S. R. Co., 91 Wash. 387, 158 Pac. 107; Schofield v. Northern Pac. R. Co., 4 Wn. (2d) 512, 104 P. (2d) 324.

Such negligence, however, to be actionable, must not only be alleged, but also proved by a preponderance of the evidence. As pointed out in the early part of this opinion, the only evidence purporting to prove that these signals were not given is the testimony of Jensen, the driver of the automobile, who merely stated that he did not hear any whistle or bell. He did not testify that the signals were not given. On the other hand, there was an abundance of testimony, from both interested and disinterested witnesses, that the bell was rung and the whistle blown timely and repeatedly.

[11] This court has repudiated the so-called "scintilla of evidence" rule and has repeatedly held that evidence sufficient to support a verdict must be substantial. Davison v. Snohomish County, 149 Wash. 109, 270 Pac. 422; Dunsmoor v. North Coast Transportation Co., 154 Wash. 229, 281 Pac. 995; Hansen v. Continental Cas. Co., 156 Wash. 691, 287 Pac. 894; Cartwright v. Boyce, 167 Wash. 175, 8 P. (2d) 968; De-Temple v. Schafer Bros. Logging Co., 169 Wash. 102, 13 P. (2d) 446; Femling v. Star Publishing Co., 195 Wash. 395, 81 P. (2d) 293, 84 P. (2d) 1008; Poland v. Seattle, 200 Wash. 208, 93 P. (2d) 379; Hauswirth v. Pom-Arleau, 11 Wn. (2d) 354, 119 P. (2d) 674.

In the Poland case, supra, we quoted with approval the following paragraph from the case of Chicago & N. W. R. Co. v. Andrews, 130 Fed. 65:

"Where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who were in a situation favorable for observation, and who testify affirmatively and positively to the occurrence. There is then no conflict.'"

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In the Hauswirth case, supra, we made this statement:

"The only evidence offered by respondent [plaintiff]upon that issue [lights] was the testimony of Richard Hauswirth, who merely stated that he saw no lights. That evidence was purely negative in character, had no more than a speculative value, and did not constitute substantial evidence within the rule requiring that a finding or verdict must be supported by a preponderance of the evidence. Poland v. Seattle, supra, and cases therein cited. On the other hand, there was positive, affirmative evidence that the lights were burning at the time.

"In view of the definite testimony that the lights were burning, and in further view of the absence of substantial evidence to the contrary, we must hold that the only finding that properly could have been made upon that issue was that the lights of the Pom-Arleau car were burning at, and immediately before, the time of the collision."

[12] Respondent contends that, under the evidence, it was properly a question for the jury to determine whether or not such signals were given, and cites as authority for her position the following cases from this court: McKinney v. Port Townsend & P. S. R. Co., 91 Wash. 387, 158 Pac. 107; and Kent v. Walla Walla Valley R. Co., 108 Wash. 251, 183 Pac. 87. In those cases, however, and in others of similar import, it was shown that the witnesses whose testimony was negative were so situated that, in the ordinary course of events, they would have taken cognizance of the disputed fact had it occurred, or that they had full and accurate knowledge of the facts concerning which they testified.

That is not the situation here. According to Jensen's own testimony, he was not aware of the fact that he was in the immediate vicinity of the railroad signs or the crossing. The uncontroverted facts demonstrate that, at the time the signals were required to be given, Jensen's automobile was a half-mile or a mile away.

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He was driving in an enclosed car, and a heavy rain storm prevailed. He was relying wholly on the presence or absence of a flare in the road to indicate the presence of the train on the crossing. According to his testimony he did not even see the reflector signs on the side of the highway.

On the other hand, appellant's witnesses, disinterested as well as interested, were in a position to observe and know whether the signals were given. They all testified positively that the whistle and bell were sounded repeatedly in the immediate vicinity of the crossing. In view of the definite, positive testimony that the bell was rung and the whistle blown, and in further view of the absence of any substantial evidence to the contrary, we must hold that the only conclusion that properly could have been drawn from the evidence was that the required signals were given.

[13] Since the verdict was general, we do not know how the jury arrived at its conclusion. It may have found from the conflicting evidence that in fact the flare was thrown upon the highway, yet may have concluded from Jensen's negative testimony that the statutory warning signals were not given. It may have been in doubt both as to whether a flare was thrown and as to whether the signals were given, but, taking the two questions together, may have resolved the doubt as to the whole in favor of respondent. Some of the jurors may have rested their verdict on the absence of a flare, and others upon the alleged failure to give the statutory signals. True, the jurors as a whole may have found that no flare was thrown upon the highway, but in determining whether that was the proximate cause of the accident and the resulting injuries they should not have been allowed to consider an alleged proximate cause upon which there was no substantial proof. In other words, appellant was entitled to have the jury consider only such issues as were properly supported by the evidence. The submission of the issue of

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statutory warning signals constituted prejudicial error and calls for the granting of a new trial.