32 Wn.2d 910, MILDRED LOUISE MCBEATH, as Administratrix, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY, Respondent
[No. 30650. Department One. Supreme Court March 24, 1949.]
MILDRED LOUISE MCBEATH, as Administratrix, Appellant,
v. NORTHERN PACIFIC RAILWAY COMPANY, Respondent.«1»

[1] TRIAL - TAKING CASE FROM JURY - HEARING AND DETERMINATION. A motion for nonsuit admits the truth of the plaintiff's evidence and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff.

[2] NEGLIGENCE - ACTIONS - CONTRIBUTORY NEGLIGENCE - AS QUESTION OF LAW OR FACT. A court will not be justified in taking from the jury the question of contributory negligence unless the acts committed by the party charged therewith are so palpably negligent that there can be no two opinions concerning them.

[3] RAILROADS - OPERATION - ACCIDENTS AT CROSSINGS - CONTRIBUTORY NEGLIGENCE - CARE IN GOING ON TRACKS - KNOWLEDGE OF EXISTENCE OF TRACKS. A person approaching a railroad crossing is bound to keep a lookout ahead and, in case of a collision with a train, cannot escape the guilt of contributory negligence by not seeing a railroad track which he could have seen if he had been exercising ordinary care.

[4] SAME. In an action for wrongful death resulting from a collision at a railroad crossing between a train and a milk truck on which the decedent, a route supervisor, was riding to instruct the driver as to his milk route, the driver was guilty of contributory negligence as a matter of law, and such negligence was imputable to the decedent, where it appears that the railroad track was plainly visible to the driver as he approached the crossing but he did nothing to protect himself or to prevent the collision.

[5] SAME - TRACKS AS WARNING OF DANGER. A railroad track is in itself a warning of danger.

MALLERY, J., dissents.

Appeal from a judgment of the superior court for Pierce county, Remann, J., entered March 29, 1948, upon granting a motion for nonsuit at the close of the plaintiff's case, dismissing an action for wrongful death. Affirmed.

Gagliardi, Ursich & Gagliardi, for appellant.

Robert S. Macfarlane and James W. Hodson, for respondent.

«1» Reported in 204 P. (2d) 248.

[3] See 40 A. L. R. 1309; 44 Am. Jur. 812.

Mar. 1949] McBEATH v. NORTHERN P. R. CO. 911

JEFFERS, C. J. -

This action was instituted by Mildred Louise McBeath, administratrix of the estate of Alexander McBeath, Jr., deceased, in the superior court for Pierce county, against Northern Pacific Railway Company, to recover damages for the death of Alexander McBeath, Jr., alleged to have been caused by the negligence of defendant.

Mr. McBeath's death resulted from a collision between a Northern Pacific southbound train and a milk truck, owned by Medosweet Dairy, and being driven by William J. Velacich, an employee of the company, who was learning the milk route under the direction of Mr. McBeath, route supervisor for Medosweet.

The complaint contains two causes of action. In the first, plaintiff asks for damages for herself in the sum of twenty-five thousand dollars, and twenty-five thousand dollars for her son Gary, aged four. In her second cause of action, plaintiff alleged that the estate of Alexander McBeath, Jr., suffered damages in the sum of four hundred sixty-four dollars, funeral expenses, and one hundred eighty-five dollars for burial and marker, for which amounts plaintiff asks judgment.

Defendant answered the complaint, denying all the allegations of negligence therein contained, and alleged affirmatively that the sole, direct, and proximate cause of the collision and the injuries and death suffered by the occupants of the truck as a result thereof was the negligence of William J. Velacich and Alexander McBeath, Jr., and each of them.

The cause came on for trial before the court and jury on February 4, 1948, and plaintiff proceeded to introduce evidence. At the close of plaintiff's case, counsel for defendant moved for a dismissal of the complaint and for a nonsuit upon two grounds:

"First, that there has been a complete failure of proof of any negligence on the part of the Railway Company, proximately causing or contributing to causing the accident in question; secondly, because there is affirmative proof of negligence on the part of the truck driver, and, of course, the relationship between the two men is such that the negligence of the driver is imputed to the decedent."

912 McBEATH v. NORTHERN P. R. CO. [32 Wn. (2d)

After counsel had argued the above motion, the court stated:

"THE COURT: Mr Gagliardi, I cannot see anything but the grossest kind of contributory negligence in this case. Granted the railroad company failed to do anything in the world they were supposed to do, it does not make any difference, if the driver of this truck drove toward something that was there for him to see and he said he did not see it. If a verdict was returned in your favor I do not believe you would ever get by. I am going to grant the motion.

"(Argument of Mr. Gagliardi.)

"THE COURT: When it is there for him to see it, the law says he has got to see it. The motion will be granted and an exception will be allowed.

"I am sorry for this woman, but I do not think the railroad company should pay unless the law says it should."

A motion for new trial was timely made by plaintiff and denied, and on March 29, 1948, the court entered a judgment dismissing the cause with prejudice. Plaintiff has appealed from the judgment entered.

The assignments of error are (1) in granting defendant's motion for nonsuit and in refusing to submit the question of contributory negligence to the jury; (2) in denying the motion for new trial.

Appellant states that

". . . there is but one question involved in this appeal, and that is whether or not the evidence introduced by the plaintiff revealed that the truck driver was negligent as a matter of law, which negligence was the proximate cause of decedent's death and contributed thereto."

On the morning of February 27, 1947, William Velacich, a milk truck driver, and Alexander McBeath, a route supervisor for Medosweet Dairy, of Tacoma, left the company's plant with a truckload of milk for delivery on route 36 of the dairy. Mr. McBeath, as a part of his duties as route supervisor, was accompanying Mr. Velacich, a new driver, and was showing him the route, which was out around Ponders, Steilacoom, and the Country Club, and required that the men drive south from Tacoma on highway 99. A few miles south of Tacoma and to the west of highway 99,

Mar. 1949] McBEATH v. NORTHERN P. R. CO. 913

or on the right of one proceeding south on the highway, is an area known as Nyanza Park, which at the time first herein mentioned was a rapidly growing community, and there was a large housing project under construction.

On the morning of the accident, these two employees of Medosweet decided to drive into the area and talk to the foreman of the construction company about selling him milk for his crew. The only means of access to this area from highway 99 is over a road known as Chicago avenue. Respondent's right of way runs parallel to highway 99, and at the point where it is crossed by Chicago avenue is about one hundred or one hundred twenty-five feet west of highway 99. Over this track, trains of respondent travel from Tacoma to the Grays Harbor district. At the time Mr. Velacich made his turn from highway 99 onto Chicago avenue, a train was proceeding south from Tacoma and approaching the crossing at Chicago avenue. The truck and the train reached the crossing at the same time, and a collision occurred, in which Alexander McBeath was killed.

[1, 2] In considering a motion of this kind, we have repeatedly announced the following rules as applicable to a determination of the question:

"We have repeatedly held that such motions admit the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom, and require that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party." Bleyhl v. Tea Garden Products Co., 30 Wn. (2d) 447, 453, 191 P. (2d) 851, and cases therein cited.

"A court will not be justified in taking from the jury the question of contributory negligence unless the acts committed by the party charged therewith are so palpably negligent that there can be no two opinions concerning them." Billingsley v. Rovig-Temple Co., 16 Wn. (2d) 202, 204, 133 P. (2d) 265.

Having in mind the above rules, the following are the material facts relative to Mr. Velacich's occupation and duties prior to the day of the accident and his actions from the time he turned onto Chicago avenue up to the time of

914 McBEATH v. NORTHERN P. R. CO. [32 Wn. (2d)

the collision, and relative to the condition of the surrounding area. Mr. Velacich testified that, before going to work for Medosweet, he had been in the army, where for about two years he had driven a truck. He had worked for the dairy for some time, but had been driving a milk truck only a few days prior to the accident. While he stated that he did not know of the existence of the railroad track prior to the accident, he admitted that on the previous day he had gone into this same area, which required that he cross the track in going in and coming out of the area.

It should be kept in mind that Chicago avenue runs in a general easterly and westerly direction, and the Northern Pacific track runs north and south.

The evidence of Mr. Velacich shows that, as one turns from highway 99 onto Chicago avenue, there are a small garage and building on the corner on the right, which would obstruct the view to the north. There was also evidence that, as one approaches the track, there are trees and brush which further obstruct the view to the north to some extent. From the photographs introduced by appellant, and the testimony, it is apparent that the railroad track, to the left of the crossing at least, is in view of a person who is looking, from the time he turns onto Chicago avenue, although there was some testimony to the effect that there were a slight embankment and some weeds on the left side of the road.

Grace Carrier, called as a witness by appellant, testified that for over twenty years she had lived on the opposite side of highway 99 from the crossing here in question, and about one hundred fifty feet from Chicago avenue; that she could see the crossing from her house and from her yard; that, as one turns west onto Chicago avenue from highway 99, a little house and a garage stand on the north side on the corner; that the terrain is perfectly open for a distance of seventy-five to one hundred feet before the track is reached.

The evidence shows that Chicago avenue dips slightly as it leaves highway 99, and then has a gradual rise to within about ten feet of the railroad track, from which point it rises about a foot in the last ten feet to the crossing. The evidence shows that, on the morning of the

Mar. 1949] McBEATH v. NORTHERN P. R. CO. 915

accident, Chicago avenue was in a bad state of repair - that it was full of chuckholes and rocks.

There is evidence that the railroad track to the north of the crossing runs through a cut or ravine, but it is undisputed that it was twenty feet from the east bank of this cut to the center of the railroad track. In other words, there is at least a distance of twenty feet to the east of the crossing where one approaching the track on Chicago avenue can see along the track to the north for a distance of half a mile or more.

Mr. Velacich testified that, as he turned onto Chicago avenue, he was looking ahead and made a "swoop" with his eyes from left to front and front to right; that he did not look from left to right beyond the surface of the road until the front of his truck was about five feet from the railroad track. Between the times he looked, as above indicated, he testified he was busy watching the road, looking from one side to the other, to pick out the best place to drive his truck, which was in low gear and traveling between seven and ten miles an hour.

During his entire testimony, he at all times claimed he did not know that a railroad track was there. He also testified that no whistle was blown or other warning given by the train crew of the approach of the train to the crossing, although in a statement which he admitted that he read and signed on April 14, 1947, he stated:

"There is some noise in the truck with the bottles rattling, and then being in low gear, so it is possible the train might have whistled and the engine bell might have been ringing, but I didn't hear it."