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 *Page 563 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 Wash. 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 *Page 564 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." *Page 565
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 13] 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 1] 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]" *Page 566
Fourth, at that point, although driving in a heavy fog, he abandoned his former care and increased his five-mile pace to some speed unknown, but to such a rate that, although he saw the train at a distance of twenty feet, more or less, and applied his recently inspected four-wheel brakes, he could not avoid the collision or slow down to less than twelve or fifteen miles per hour.
"Q. . . . So I got my bearings and knew just about where it was, and when I came to the track there, that car — it was — I couldn't say exactly how close I was to it. I was maybe 15 or 20 feet. . . . [St. 22, line 12] Q. And about how far were you from the car when you first saw it? A. I don't exactly know. . . . I couldn't give the exact distance of that, maybe 20 feet. It may have been closer; it may have been farther. . . . [St. 49, line 14] Q. In any event it was too close to you to enable you to stop at whatever speed you were going? A. Yes, it was. [St. 49, line 20] I don't think I was travelling over 12 or 15 miles an hour,I don't think, when I hit that car. . . . [St. 24, line 22]"
The above is appellant's story in his own words. No testimony has been quoted other than his own. The trial judge was called upon to rule as to whether or not it showed that he was chargeable with negligence contributing to his injury. He held that it did. He was in duty bound to apply the former decisions of this court in deciding that question of law, and I think he correctly applied them.
It is said in the majority opinion, in that paragraph beginning the discussion of contributory negligence, that many courts, in considering cases similar to this, 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 the impression is given that we have employed that rule in holding drivers who run into the side of a train *Page 567 at a grade crossing guilty of contributory negligence. TheMcFadden and Dumbolton cases, which will be discussed later in this opinion, are cited in that paragraph, and the paragraph closes with this sentence:
"Other cases might be cited, but we think these are sufficient to show the general rule which we have adopted."
I know of no case in which this court has ever employed that rule in holding a driver who ran into the side of a train guilty of contributory negligence, and, certainly, the McFadden andDumbolton cases do not proceed on any such theory. In McFaddenv. Northern Pac. R. Co., 157 Wash. 437, 289 P. 1, the trial court, as in this, dismissed the cause when the plaintiff had rested, on the ground that it established his contributory negligence. The court said, in part:
"It is our opinion that the trial court did not err in its conclusion. It is no doubt true that a traveler upon a public highway, having no knowledge of its condition, other than that which is apparent to him, may use it in the ordinary and usual way in the faith and belief that no obstructions have been placed therein without adequate and sufficient warning of their presence. Hence, if he, while so using it, unknowingly approaches a railroad crossing at which a train is crossing, which is guarded with nothing more than the usual crossing signs, and the visibility is such that he cannot see it until he approaches so closely that he cannot avoid striking it, he might not be guilty of contributory negligence.
"But this was not the situation presented here. The person injured by colliding with the train was familiar with the highway and its surroundings and conditions. He knew of the presence of the railroad crossing, and knew, or was in duty bound to know, the uses that were made of it. He knew that there were no lights, bells, or warning signals of any kind to indicate the location of the crossing tracks, and knew that the tracks were continuously used. To pass over it when the visibility *Page 568 was such that he could not see a train upon it until he was too close to it to avoid running against it, is, in this situation, such contributory negligence as will prevent a recovery. Bowdenv. Walla Valla Valley R. Co., 79 Wash. 184, 140 P. 549;Benedict v. Hines, 110 Wash. 338, 188 P. 512; Miller v.Oregon-Washington R. Nav. Co., 128 Wash. 292, 222 P. 475;Keene v. Pacific Northwest Traction Co., 153 Wash. 310,279 P. 756. As we said in the last cited case:
"`There was, it is true, a fog, at the time, which more or less obscured his [the injured person's] vision, but this, instead of excusing him from exercising care and caution, rather added to his duty in that respect. If he could not see whether or not he was entering a zone of danger in venturing onto the railway track, it was his duty to take some other means of ascertaining the fact. He could not abandon all caution, take a chance on escaping injury, and, failing to escape, charge his delinquency to another.'"
In arguing the case at bar, appellant's counsel put a question to this general effect: What should, or could, my client have done that he did not do? The appropriate answer is made in the last of the three paragraphs above quoted.
The majority attempts to distinguish the McFadden case on the ground that the track involved in the case at bar was not "continuously used" and the appellant had never seen a train on the crossing. But that is not a valid distinction. The question involved here is: Did the appellant, without due care, put himself in a place where he knew danger was to be apprehended? When asked if he anticipated the train might be there, he said: "You never know." In fact, he even said that "he expected one any time," though, in fairness, that should be interpreted as meaning merely that he realized that one might be there at any time.
In the case of Dumbolton v. Oregon-Washington R. N. Co.,186 Wash. 433, 58 P.2d 806, decided six *Page 569 years after the McFadden case, this court, in a unanimous Department decision, disposed of the same contention which the majority now makes. In the Dumbolton case, as in the case at bar, the trial court held, upon a challenge at the close of the plaintiff's evidence, that plaintiff's own evidence showed that he had been guilty of contributory negligence, and dismissed the case. In a fog — the opinion says, "there was much fog" — the plaintiff, driving "at from twelve to fifteen miles per hour," ran into an engine on a switch track. He had driven over the particular portion of the highway in question "half a dozen times each day for about a week preceding the accident." On appeal, this court said, in part:
"Under the decisions of this court, it must be held, as matter of law, that appellant was guilty of such contributory negligence as bars any recovery on his part."
Various decisions were cited to sustain the holding, and the second of the paragraphs, which I have above quoted from theMcFadden opinion, was quoted in support thereof. The appellant's contention that those cases were distinguishable on the ground that he had never seen a train on this track, was summarily disposed of by the court:
"While appellant testified that he had never seen any trains upon the switching tracks, he knew that the tracks were there, and, as we have repeatedly held, a railroad track is in itself a warning of danger." (Italics mine.)
The majority, nevertheless, say:
"We do not want to be understood from what has been said in this opinion that we are in any way overruling or modifying any of our decisions on this subject, because we do not think this decision conflicts with them."
With all due respect, I submit that their opinion does conflict with, and, in effect, does overrule, our *Page 570 former decisions, and I further think it unfortunate that the majority does not frankly say so. As it is, the members of the bar will, of necessity, be left in doubt as to what the law is, and the trial judges who are bound to follow the decisions of this court, on ruling upon challenges to evidence and in framing instructions, will be in no better case.
I think also that the appellant was guilty of negligence perse, and that this was a proximate cause of the collision. Our legislature has passed many statutes designed to prevent grade crossing accidents, approaching the matter from two points of view. Since 1909, the railroad commission, or the successor to its powers and duties, has had the power to require any railroad to install signals at grade crossings. Rem. Rev. Stat., § 10513 [P.C. § 5640]. Later, the sawbuck sign law was passed, and the director of highways has been authorized to require the installation of additional devices. Rem. Rev. Stat., Vol. 7A, § 6400-49 [P.C. § 2696-570]. On the other hand, the legislature has also laid down rules to be followed by drivers of motor vehicles in approaching grade crossings. I quote a portion of chapter 189, Laws of 1937, § 104, p. 905, Rem. Rev. Stat., Vol. 7A, § 6360-104 [P.C. § 2696-862], emphasizing the material part by the use of italics:
"Any person operating any vehicle carrying passengers for hire or operating any school bus or operating any vehicle in which are being transported explosive substances or inflammable liquids shall bring such vehicle to a full stop within fifty (50) [feet], but not less than twenty (20) feet, of any railroad or interurban grade crossing before proceeding across the same. Any personoperating any vehicle, other than those specifically mentionedabove, shall, upon approaching the intersection of any publichighway with railroad or interurban grade crossing, reduce thespeed of such vehicle to a rate of speed not to exceed that atwhich, considering view along such track in both directions, *Page 571 such vehicle can be brought to a complete stop not less than ten(10) feet from the nearest track in the event of an approachingtrain. . . ."
Of this statute, the majority say:
"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."
I submit that it does not provide what a driver approaching a grade crossing shall do in the event a train is also approaching. It provides a rule of conduct for vehicle drivers inapproaching a dangerous place, to wit, a railroad grade crossing. The rule it provides for drivers of common carrier vehicles, school busses, and vehicles carrying explosives or inflammable liquids, is that they
". . . shall bring such vehicle to a full stop within fifty (50) [feet], but not less than twenty (20) feet, of any railroad or interurban grade crossing before proceeding across the same."
The obvious purpose of the rule is to absolutely insure that the driver of such a vehicle will, in every instance, come up to the track with his vehicle under control. He must stop, and, if he failed to do so and ran into a railroad car standing on the crossing, he would not be allowed to say that the statute applied only in the event that a train is approaching. The statute means that he shall make a full stop, even if there be no train within a mile, and, I may add, that that is, as every person knows, the interpretation made of the statute in actual practice.
For the drivers of other vehicles, a less stringent rule of conduct in approaching railroad grade crossings is provided. The statute provides that, in approaching a railroad grade crossing, they shall reduce their speed to a rate not to exceed that at which they can come to a complete stop not less than ten feet from the nearest *Page 572 track. True, the statute adds, "in the event of an approaching train." That, in my opinion, is merely an explanatory phrase which does not condition the application of the statute. Is the statute only applicable in the event a train is approaching? Suppose, with his car not under the control provided by the statute, a driver crashes into the caboose or last car of a train which has all but cleared the intersection, can he escape negligence per se by saying: Why, that statute applies only in the event of an approaching train?
I believe that the statute can be fairly construed in the manner I have above indicated. I hope that, when the necessity for construing it arises, it will be so construed. It may be presumed that the legislative purpose in enacting the statute was to prevent such accidents as had previously been the subject of inquiry in the McFadden, Dumbolton, and many similar cases. In spite of the presumption that men will exercise ordinary care for their own safety, such accidents were, and are, continually occurring. To my mind, the statute makes obligatory a specific course of conduct for all vehicles in approaching railroad grade crossings, which, if complied with, will render such accidents extremely rare.
But whatever may be the correct interpretation of the statute, the appellant certainly violated the common-law standards of care set up in our former decisions. He was familiar with the highway. He knew that the crossing was one hundred feet ahead of him. He knew that a train might be approaching it or blocking his path. Yet, instead of maintaining his then cautious pace, he speeded up in that last hundred feet to such a point that, despite the use of his brakes at the last moment, he crashed into a train at a speed of at least twelve or fifteen miles per hour. As is said in the McFadden case in quoting from a still earlier decision: *Page 573
"`There was, it is true, a fog, at the time, which more or less obscured his [the injured person's] vision, but this, instead of excusing him from exercising care and caution, rather added to his duty in that respect.'"
I have felt it my duty to dissent as earnestly as I can from an opinion which so completely abandons the salutary standards set up by our predecessors in a case as similar to this case as one case can ever be to another.
BEALS, STEINERT, and JEFFERS, JJ., concur with ROBINSON, J.