The portion of the amended complaint which charges the respondent with negligence reads:
"That on to-wit: the first day of April, 1938, at about 1:00 o'clock A.M. the said D. Dickinson, while the deceased Glenn W. Schofield was riding with him as a guest and a passenger, was driving his auto truck along a certain highway in King County, Washington, immediately to the West of Renton, Washington, and while so driving he ran into the side of a freight car belonging to and being moved by the defendant Northern Pacific Railway Co. its servants agents; that said freight car was approximately the 18th car in a train of 40 freight cars, each car being about 44 feet long.
"That the negligence of the defendant Northern Pacific Railway Co., its servants and agents, consisted of the following:
"At the said time and place the defendant Northern Pacific Railway Co. maintained a standard gauge single railroad track which intersects the paved highway upon which the said Dickinson, with the deceased as his guest, was driving in a northerly direction intending to come to Seattle. That said track is used very seldom and when a freight train passes over the highway upon which plaintiff was driving the color of the cars and the color of the highway at night so blend that it is very difficult for an automobile driver using ordinary care to tell whether or not there is a train upon said track until an automobilist is very close to the track; that the track is elevated above the roadway and to cross the track it is necessary to drive up an incline, and the headlights on an automobile or truck do not show a passing train until the driver is very close to the track; that the railroad track crosses this highway at a point about 125 feet northerly of the intersection *Page 519 of two paved heavy travelled roads upon which there is an intermittent blink traffic light, which light and which intersection engages the attention of drivers coming from the south toward the north; that said defendant company maintained no sign or warning to the south of said track indicating that there was a railroad crossing; that there was a railroad crossing sign to the north of said track but when a train is passing over said highway this sign cannot be seen from the south; that the said place is a place which at night when trains are crossing said highway should in the exercise of ordinary care by defendant have a warning sign, an automatic lighting device and an automatic signal bell device to warn motorists that a train is crossing, or else there should be stationed at said point a watchman with a lantern to warn motorists driving upon said highway; that said crossing is at night a very dangerous crossing unless it has said warning sign, lighting and signalling devices or unless a watchman with a lantern is stationed there; that on account of the above situation, the existence of railroad tracks and/or train thereon, cannot in the exercise of ordinary care by an automobile driver be known to the said driver; that the crossing blink light which is overhead intermittently diffuses rays of light along the highway which crosses said railroad track and these rays merge with automobile lights, and this situation coupled with the incline and the lack of any warning or signals, and with the element of the short distance between the highway crossing and the railroad track, creates a deceptive situation and one where it appears that the only danger which an automobile driver has to guard against at the highway intersection, and in this situation it is practically impossible to see a railroad train that is crossing the highway on defendant's tracks until the automobile driver is so close to it that a collision is imminent, and that the said situation in effect creates a trap where, because of the matters above alleged, the automobile driver does not and cannot in the exercise of reasonable care know when the train is crossing this highway in the night time. That this situation had existed for a great many years and the defendant Northern Pacific Railway Co. for many years prior to the happening *Page 520 of the accident herein alleged knew, or in the exercise of ordinary care should have known, of the dangerous character of this situation. That the defendants Armstrong and Veatti for a long time prior to the happening of the accident herein alleged also knew of the situation alleged in this paragraph; that the said D. Dickson, the driver of the truck in which plaintiff was riding, on account of the matters alleged in this paragraph, and because he was deceived by the situation herein alleged, did not know, and in the exercise of reasonable care on his part could not know of the presence of a train on defendant's track at said time and place."
Cases from other jurisdictions are cited in the majority opinion to sustain its holding. However, the questions presented in the case at bar have been determined by this court in Ullrichv. Columbia Cowlitz R. Co., 189 Wash. 668, 66 P.2d 853;Reines v. Chicago, M., St. P. P.R. Co., 195 Wash. 146,80 P.2d 406; and Webb v. Oregon-Washington R. Nav. Co.,195 Wash. 155, 80 P.2d 409.
The trial court in the following memorandum decision, made just before signing the order sustaining the demurrer, properly stated the rule which should be applied to this case:
"After a careful examination of the amended complaint herein, I am of the opinion that the same is demurrable under the authority of Reines v. Chicago, Milwaukee etc. R.R. Co., 195 Wash. 146, and Webb v. Oregon-Washington etc. Co., 195 Wash. 155. The supreme court in such cases adopted the rule that a train actually occupying a grade crossing supersedes all other warnings and gives actual notice of its presence irrespective of weather conditions or physical conditions existing thereat. Such rule, in my opinion, prevents the application of the trap case rule upon which the case of Licha v. Northern Pac. R.R., 276 N.W. (Minn.) 813 is based."
I can see no distinction in principle between the case of Webbv. Oregon-Washington R. Nav. Co., *Page 521 supra, and the case at bar. In the cited case, it was claimed that the railroad approach was on a decline and the light shone in plaintiff's eyes. In the present case, it is pleaded that the highway approached the crossing on an incline, and blinker traffic lights engaged the driver's attention. In each case, the physical conditions present are urged as reason for not seeing the train until it was too late to avoid a collision.
The holdings in these cases present a situation in which a railroad company is negligent when its train is upon an elevated grade crossing, but is not liable when the grade crossing is below the approach level.
The facts pleaded in the present case are not unlike those contained in the Reines case, supra. Each allege a dangerous crossing known to the railway company; a peculiar physical condition present, a fog in the reported case and an intermittent blinker traffic light in the case at bar; the lack of knowledge on the part of the drivers of the automobiles; the failure to station a watchman at the crossing; and the failure to display an automatic lighting device or maintain an automatic gong or signal bell device.
In the case at bar, the appellant charges that the train whistle was not blown before the train approached the crossing, and alleges the lack of a sign at the side of the road to indicate the presence of a crossing.
"Lights, signs and other warnings are for the purpose of giving notice of or assisting the traveler, about to cross the track, to see an approaching train. When a train actually occupies the crossing, that in itself supersedes all other warnings and gives actual notice by its own presence. Wink v. Western Maryland R.Co., 116 Pa. Super. 374, 176 A. 760; Ausen v.Minneapolis, St. P. S.S.M.R. Co., 193 Minn. 316,258 N.W. 511." Ullrich v. Columbia Cowlitz R. Co., 189 Wash. 668,66 P.2d 853. *Page 522
It is clearly apparent that, if the traveler could not see the large box cars on the crossing, he could not see a sign at the side of the road.
There was sufficient notice to the travelers in the automobile that the train was present on the crossing. The engine, its tender, and seventeen box cars had passed over the crossing before the automobile reached it. The length of the seventeen box cars, the engine, and tender, would be approximately eight hundred feet. The crossing itself and the presence of the train with its attendant noise was sufficient to warn any driver of danger.
I feel that the respondent was not guilty of negligence when its conduct is measured by the holdings in the cases to which I have just referred.
I therefore dissent.
BEALS, STEINERT, and ROBINSON, JJ., concur with SIMPSON, J.