Hoyle v. Northern Pacific Railway Co.

Tolman, J. This action grows out of the same state of facts as the case of Miller v. Northern Pac. R. Co., ante p. 645, 178 Pac. 808. In this court, the death of Dolly Hoyle has been suggested and permission has been given for the substitution, as party plaintiff and appellant, of Gr. E. Peterson, who has been appointed by the superior court of Pierce county as special administrator of the estate of Wallace Hoyle, deceased. Appellant’s decedent met his death at the same time and under the same circumstances as the decedent in the Miller case, and a restatement of the facts here is considered unnecessary. In this [653] case, the trial court refused to instruct the jury upon the last clear chance doctrine, and the jury found a verdict for the defendant, respondent here. Appellant relies chiefly upon that refusal' so to instruct, but as what we have said in the Miller case necessarily disposes of that question here, it follows that there was no error committed in that respect. Error is also predicated upon an instruction given by the trial court to the effect that, though the truck was driven by Miller, yet if Hoyle was sitting on the seat beside Miller, it was the duty of Hoyle to keep a continuous and vigilant outlook for approaching trains, and he was not relieved from that duty by reason of the fact that Miller was driving the truck; and if Hoyle could have seen the approaching train, had he looked in that direction and in a timely manner, it was his duty to have done so, and to have warned Miller of the danger, and a failure in this respect would be negligence on the part of Hoyle which would defeat his right of recovery. "Without in any way imputing the negligence of Miller to Hoyle, we think the facts in this case abundantly establish negligence on the part of Hoyle; and that, to a degree which would well have warranted the trial court in taking the case from the jury; and certainly the instruction given was amply justified. Hoyle had been driving the truck until a few moments prior to the accident, when he surrendered the wheel to his employer Miller, remaining on the seat beside him. He had lived on the Miller farm for more than sis months and must have well known all of the conditions. Biding beside the driver, on the side from which the train was approaching, the slightest degree of care for his own safety would have caused him to look for the regular train then due, which always passed that crossing at [654] a high rate of speed. He did not occupy a position in the truck, or a relationship toward Miller, which would permit him to close his eyes to that which would have been apparent had he looked and rely absolutely upon either Miller or the railroad operatives to protect him from danger. As we view the facts and the inferences to be drawn'therefrom, the court should have decided, as a matter of law, that Hoyle was guilty of contributory negligence, and therefore no advantage will flow from a further discussion of the instructions given and refused, upon which all the assignments of error are based. Judgment affirmed. Chadwick, C. J., Main, Mackintosh, and Mitchell, JJ., concur.