
    [No. 15401.
    Department One.
    December 1, 1919.]
    North Coast Power Company, Respondent, v. Cowlitz, Chehalis & Cascade Railway, Appellant.
      
    
    Railroads—Accident to Trains—Collision — Contributory Negligence. A collision between an electric interurban car and a railroad flat ear, using by agreement the same tracks, was due to the palpable contributory negligence of the electric motorman in running his car at speed through a dense fog past a siding when he had been ordered to operate his car under control.
    ' Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered January 13, 1919, upon findings in favor of the plaintiff, in an action in tort, tried to the court.
    Reversed.
    
      A. A. Hull and H. E. Donohoe, for appellant.
    
      Hayden, Langhorne & Metzger, for respondent.
    
      
      Reported in 185 Pac. 615.
    
   Mitchell, J.

The respondent, North Coast Power Company, sued the appellant, the Cowlitz, Chehalis & Cascade Railway, for damage to one of its electric cars caused by a collision with the appellant’s cars between John street and Eleventh street, in the city of Chehalis, on November 1, 1917. In the trial without a jury, it recovered judgment, from which an appeal has been taken. The issues were negligence' on the part of the appellant and contributory negligence on the part of the respondent.

The respondent owns and operates a single-track electric street-car line from Centralia to Chehalis, with intermediate sidings for the passing of its cars. At Chehalis its track passes near the Northern Pacific Railroad station, thence on south to John street. Connecting at the latter point, appellant owns and operates a single-track railroad for the transportation of freight and passengers, which extends into the southeastern part of the county. On November 9, 1914, a written agreement was entered into by the two companies by which appellant could use respondent’s track from John street north to the Northern Pacific station, and respondent could use appellant’s track from John street south to Eleventh street, a distance of twelve blocks (about thirty-six hundred feet) to a point near the state training school. Respondent extended its trolley wire over the track from John street to Eleventh street, and there was provided about midway between those streets a siding, over which there was no wire, to accommodate appellant’s rolling stock as the electric cars passed over that stretch of the track. The written agreement contained no schedule as to time for the movement of trains, nor was there any signal or other system employed to advise each of the other’s use of the track. Respondent had maintained a well-known time table by which its cars left Eleventh street, bound north, twenty-five and fifty-five minutes after the hour. Appellant had no time table for the movement of its freight cars, but generally made them up and moved them along this stretch of track, among other times, about seven to eight o’clock in the morning. There is considerable testimony as to which had the right of way over the other, sometimes spoken of as a clear right of way. The traffic officers of the two companies had several conversations looking to the establishment of regulations to prevent accidents, intending to put them in writing, which was never done. We are satisfied each had the right to use the track when unoccupied by the other, but in the case of conflict respondent had the right of way, for which purpose the switch or siding was prepared and equipped to accommodate the cars of appellant only. Such was the practice of the parties that on frequent occasions respondent’s cars were delayed until appellant retired its engines and cars or placed them upon the switch. Respondent’s cars were frequently off time at the Eleventh street terminus, caused generally by the interference of appellant in switching and making up its trains in that vicinity.

For some hours before and at the time of the collision, there was a dense fog all along the electric car line. At Chehalis, where the accident occurred, the fog was so dense that an object the size of a flat car could not be seen at a greater distance than fifty feet. The electric car last going north from Eleventh street prior to the arrival of the one in the collision, due to leave at 7:25 a. m., was delayed some eight or ten minutes by the use of the track by appellant in switching its cars. This loss of time in turn caused the south-bound electric car so much delay at the passing station between Chehalis and Centralia that the southbound car, which was operated by one Arthur R. James, was four or five minutes late in arriving at the siding between John street and Eleventh street, where the collision occurred, about eight o’clock a. m. In the meantime, just before the accident, and for some unexplained reason or lack of it, appellant had left several of its flat cars on the main track by the siding on which its locomotive was standing. On the arrival of the street car operated by James, he could not see the flat car in time to avoid a collision. We are satisfied, as was the trial court, the facts established negligence on the part of the appellant.

On the other hand, respondent is chargeable with pronounced contributory negligence. William A. Schoel, manager of the respondent at and for eight months prior to the date of the accident, testified that the first thing told every motorman was to look out for other trains between John and Eleventh streets, and that he gave Arthur E. James verbal instructions to operate his car under control and look out for trains between Eleventh street and the Northern Pacific passenger depot. The evidence is undisputed that the maximum speed of the electric car was twenty-two miles per hour; that, at such speed, the car could not be stopped in less than one hundred and twenty-five feet on an ordinary track; and that the stretch of track where the collision occurred was straight and level.

Arthur E. James, the motorman in charge of the electric car, testified that he was thirty-one years of age; that he had been working, without pay, for the company a week, “breaking in on the car,” and that the accident occurred on his second trip from Centralia on the morning of the first day he worked for pay; that it was very foggy both trips; could see ahead possibly fifty feet; “you would have to be right up to them (passengers) before you could see them, because of the fog;” that he knew fog caused a difficult, slick rail; that he knew appellant operated its freight cars on this track, and himself had been held up before by freight cars on this main line; that the freight cars with which he collided were within fifty feet of him when he first noticed them, at which time his car was “open to the limit, going as fast as it could . . . about twenty miles an hour;” that he did not know within what distance he could have stopped his car under the circumstances, but did not think it could be stopped within fifty feet, but thought it might possibly be stopped within that distance if going only ten miles an hour; and that, for the operation of his car, he had received orders to be on the lookout below John street for appellant’s freight and gas cars.

It is, according to both reason and authority, the rule that what would be due care under certain cirCTimstances would not be due care under other or different circumstances, and that, if anything in the surrounding conditions and circumstances reasonably suggests the necessity for an increase of care to avoid peril and damage, the duty to increase such care proportionately increases. This court, in Helliesen v. Seattle Elec. Co., 56 Wash. 278, 105 Pac. 458, tersely said: “In determining the question of contributory negligence due care or ordinary prudence is the only known test.” The evidence here presents a case of plain, palpable contributory negligence. The motorman, in defiance of the caution and prudence not only suggested but demanded by his own knowledge based upon observation and experience as to the probability of there being freight cars on the main line south of John street, and in violation of the positive instructions of his superior, madly drove his car at that place with a speed far beyond his power of checking it within the range of his vision. Such contributory negligence precludes any right of recovery, notwithstanding the negligence on the part of the appellant. Anson v. Northern Pac. R. Co., 45 Wash. 92, 88 Pac. 1058; Stueding v. Seattle Elec. Co., 71 Wash. 476, 128 Pac. 1058.

Reversed, with directions to enter judgment in favor of the appellant.

Holcomb, C. J., Parker, Mackintosh, and Main, JJ., concur.  