Nicol v. Oregon-Washington Railroad & Navigation Co.

Citations

• 71 Wash. 409
• 128 P. 628
• 1912 Wash. LEXIS 764

Syllabus

<p>Ratlroads — Accidents at Crossings — Pleading and Proof — Variance. It is an immaterial variance that the complaint alleged that the defendant’s engineer saw plaintiff’s automobile stalled on a crossing in time to have stopped the train, and the proof showed that had the engineer been keeping a proper lookout, he could have seen plaintiff’s signals, as he ran down the track to give warning, in time to have stopped the train and avoided the collision.</p> <p>Same — Contributory Negligence. It is contributory negligence for a driver of an automobile, on a bright night with all the lights on his machine lighted, to drive off a 16-foot planking at a railroad crossing and stall his ear near the cattle guards.</p> <p>Same — Accidents at Crossings — Contributory Negligence— Last Clear Chance — Evidence—Sufficiency. In an action for damages to an automobile, negligently stalled on a railroad crossing in a public highway, the railroad company is liable under the doctrine of the “last clear chance,” and the engineer is guilty of negligence, where it appears that the night was clear and a man on the track could have been seen a distance of 1,200 feet, and the train stopped within 1,000 feet without an emergency stop, that the plaintiff ran down the track lighting matches and waving his hands, in the rays of the headlight, giving the engineer 1,500 feet in which to stop the train had he been keeping a proper lookout.</p>