Aldread v. Northern P. Ry. Co.

• Court: Washington Supreme Court
• Writing for the Court: CHADWICK, J.
• Citation: Aldread v. Northern P. Ry. Co., 160 P. 429, 93 Wash. 209 (Wash. 1916)
• Decision Date: 21 October 1916
• Parties: ALDREAD v. NORTHERN PAC. RY. CO.

160 P. 429

93 Wash. 209

ALDREAD v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

October 21, 1916

Department 1. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by Al Aldread against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C. H. Winders, of Seattle, for appellant.

Griffin & Griffin, of Seattle, for respondent.

CHADWICK J.

Respondent was engaged as a brakeman in a switching crew. The crew was regularly assigned to do the switching in and between Puyallup and Sumner during the berry season. The distance between Puyallup yards and Sumner yards is about a mile. Over this intervening space, switching is done on the main track. At the time plaintiff was injured, the crew was moving two cars, a flat car loaded with wood consigned to Sumner and a refrigerator car, with passenger equipment, which had been iced at the icehouse at Puyallup and was being moved to the Fruit Growers' Association warehouse at Summer for loading. The car was there loaded and thereafter consigned to Grand Forks in North Dakota. The engine was backing and pulling the two cars. There was a step or footboard on the tender. Switch engines are usually so equipped, for the convenience of the switchmen. The air was not coupled between the engine and the cars. The train was controlled by a direct application of the air upon the engine.

The conductor, the swing brakeman, and respondent rode on the footboard from Meeker junction to Sumner. As the train slowed down and was about to stop at the station, the conductor and the swing brakeman stepped off the footboard. Respondent says that just as the train was about to stop he gave the signal to the fireman to stop; that the engine did stop; that he stepped off, and instantly the engineer released the air, and the momentum of the cars was such that they struck or pushed the engine, moving it forward about three feet; that the footboard caught him on the back of the foot or ankle, and doubled his leg over his foot, crushing and bruising it so that he has suffered permanent injuries. Other facts will be mentioned in our discussion of the law. The appeal is prosecuted from a verdict and judgment in favor of the respondent.

The first question is whether the federal Employers' Liability Act applies in this case. We have recently examined that act and reviewed the cases. The icing of the car was an initial movement incident to its loading and billing to a point outside of the state, and we hold, under the authority of Bolch v. Chicago, Milwaukee, etc., Ry. Co., 90 Wash. 47, 155 P. 422, that it was engaged in interstate commerce at the time respondent was injured.

Whatever the movement may be called, under the testimony of respondent the question whether due and reasonable care for the safety of its employés demanded of appellant a coupling of the air is for the jury.

The most material inquiry upon the trial was whether the movement of the cars from Puyallup yards over the intervening space into Sumner yards was a train movement or a switching movement, respondent contending that, inasmuch as there were two cars and an engine moving over the track between the two yards, it was a train movement, and that the cars should have been coupled with the air. To sustain his theory, respondent sought to show that the train was moved without complying with the Safety Appliance Act. It is possible that counsel were of opinion that it was necessary to show a violation of the Safety Appliance Act in order to avail themselves of the right to a recovery, notwithstanding a finding of negligence on the part of the respondent. Respondent is entitled to that benefit under our holding that appellant was engaged in interstate commerce.

The Employers' Liability Act of April 22, 1908, 35 Statutes at Large, p. 65, defines the right of the employé in such cases, and the rights of the parties depend upon it and not on the Safety Appliance Act.

Counsel was permitted, over the strenuous objection of counsel for appellant, to prove a rule and custom requiring all trains to carry markers or green flags upon the rear of a train, and that such markers were not displayed upon the rear car at the time respondent was hurt. While the presence of the markers might tend to prove that appellant was engaged in a train movement, the absence of such markers could have no relevancy whatever. The presence or absence of the markers had nothing to do with the accident. They are used to give notice to other trains of the movement and character of a train running with or opposite to them, to avoid collisions and to indicate rights of way. The error of the court in admitting such testimony is apparent. Its presence in the record is not accounted for upon any reasonable or legal grounds. Counsel's argument is no more than this: If markers had been displayed, it would have been a train. They were not displayed, and it was a train anyway. It neither proves nor tends to prove any fact material to the issue. Its tendency was to convict appellant of an independent act of negligence--a disregard of its rules which in no way contributed to the injury.

Subject to the well-settled doctrine that notice of a defect may be proved by other accidents occuring at a given place, it has been repeatedly held that evidence of an independent act of negligence is not material or relevant. Dickey v. N. P R. Co., 19 Wash. 350, 53 P. 347; Henne v. Steeb etc., Co., 37 Wash. 331, 333, 79 P. 938. More especially when the act complained of in no way contributed to the injury. 1 Greenleaf on Evidence (14th Ed.) § 52.

The court permitted respondent to introduce a train bulletin, issued by the division superintendent after the accident to plaintiff, requiring all cars moved between Sedro Woolley and Clear Lake, Wash., to be coupled with air. This seems to have been relied upon as an admission that the movement of cars along a main track constituted a train movement, and not a switching movement, and to show inferentially an admission on the part of the company of a negligent practice. The admission of this testimony was error. The manner of moving trains upon another division could have no bearing on the question in this case. In Bell v. Washington Cedar Shingle Co., 8 Wash. 27, 35 P. 405, the court cited and relied upon the case of Columbia, etc., R. R. Co. v. Hawthorne, 144 U.S. 202-207, 12 S.Ct. 591, 593 (36 L.Ed. 405):

'The evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendants.'

See, also, Carter v. Seattle, 21 Wash. 585, 59 P. 500.

Respondent was permitted, over the objection of plaintiff, to introduce a book of rules containing, among others, the following 'Train pipe must be connected to permit of operation throughout the train.' This too, was error. Granting that the inquiry, whether the movement was a train movement or switching movement, was material, the offer of the...