Carroll v. Union Pac. R. Co. , 20 Wash. 2d 191 ( 1944 )

That the defendant was negligent in maintaining a condition on its right of way which obscured the vision of travelers approaching the crossing, is apparently conceded. In such a situation it has been held by this court that the question of contributory negligence is for the jury. Ladouceur v. NorthernPac. R. Co., 6 Wash. 280, 33 P. 556, 1080; Steele v. NorthernPac. R. Co., 21 Wash. 287, 57 P. 820; Stewart v. NorthernPac. R. Co., 96 Wash. 486, 165 P. 377; Hubenthal v. Spokane Inland Empire Co., 97 Wash. 581, 166 P. 797. Speaking for the court in the Steele case, Judge Dunbar said, p. 299:

"In Grand Trunk Ry. Co. v. Ives, 144 U.S. 408 (12 Sup. Ct. 679), the rule was laid down that, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence, the determination of the matter is for the jury.

"The facts in that case were that, while the plaintiff, who was an old man, was driving towards the railroad crossing, and looking at a train that had just crossed the road from one direction, and while the noise caused by it was still quite distinct, he drove on toward his destination, and just as he had reached the track, and while apparently watching the train that had passed, he was struck by another train, coming from another direction, — a case not dissimilar in principle from the one at bar.

"`It is frequently stated that, when the facts are undisputed or conclusively proved, the question of negligence is to be decided by the court. A better opinion, however, would seem to be that, in order to justify the withdrawal of the case from the jury, the facts of the case should not only be undisputed, but the conclusion to be drawn from those facts indisputable. Whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case should properly be left to the jury.' 2 Thompson, Negligence, p. 1236.

"And as showing the impropriety of judges taking this question from the jury, except in cases showing undisputed and palpable negligence, it is said by Mr. Cooley, in his work on Torts (p. 802):

"`If the judge, in such a case, were to pass upon negligence as a question of law, he must, in doing so, be endeavoring to enforce a rule of a variable nature, which must take its final coloring from the experience, training and temperament of the judge himself; a rule which his predecessor might not have accepted, and which his successor may reject, and upon which a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different. As has been said in one case, it must be a very clear case, indeed, which would justify the court in taking upon itself this responsibility. For when the judge decides that a want of due care is or is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the conduct of the party by that, turns the case out of court or otherwise disposes of it upon his opinion of what a reasonably prudent man ought to have done under the circumstances.'"

That the majority in the instant case have assumed the functions of the jury in weighing the evidence and appraising the credibility of witnesses, is apparent from the following paragraph of the opinion:

"Appellant was careful to testify that he was proceeding very slowly, that his brakes were in good condition, and that he could have stopped his car almost instantly. He testified that he anticipated the possibility that a handcar might be moving along the track, and that he was on guard against such a contingency. The portion of his testimony above quoted is not consistent with his other testimony to the effect that the driver of an automobile could not see any distance along the track until the front bumper of the car was on the rail."

I dissent.