Allen v. Northern P. Ry. Co.

• Decision Date: 21 June 1904
• Citation: 35 Wash. 221,77 P. 204
• Parties: ALLEN v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

77 P. 204

35 Wash. 221

ALLEN v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

June 21, 1904

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by W. J. Allen against the Northern Pacific Railway Company. There was a verdict for plaintiff, and, from an order granting a new trial, plaintiff appeals. Affirmed.

Hadley and Dunbar, JJ., dissenting.

Walter S. Fulton and Vince H. Faben, for appellant.

Jas. F. McElroy and B. S. Grosscup, for respondent.

PER CURIAM.

This action was brought in the superior court of King county by W J. Allen, plaintiff, against the Northern Pacific Railway Company, a corporation, defendant, to recover compensation for personal injuries. The cause was tried before the court and a jury. A verdict was returned for plaintiff, which, upon the motion of defendant, was set aside and a new trial granted by the lower court upon the sole ground, as stated in the record, 'that the evidence introduced at the trial herein failed to show any act or acts of negligence on the part of the defendant.' The plaintiff excepted and appealed from the order granting the new trial. The only error assigned is that the trial court erred in making said order. The court having stated the ground of its decision in the order granting the new trial, the sole proposition presented for our consideration upon this appeal is whether any act or acts of negligence on the part of respondent appeared in the evidence which became a question for the consideration of the jury at the trial. Gray v. Washington Water Power Co., 27 Wash. 713, 68 P. 360.

On January 13, 1902, appellant, W. J. Allen, was a passenger on one of respondent's trains, bound from Portland, Or., to Seattle, Wash. When this train reached the Columbia river, an employé thereon informed appellant that he would have sufficient time in which to get breakfast on the ferry. Thereupon the appellant left the train, went into the restaurant on the ferry, and ordered his breakfast. Ordinarily the time occupied in crossing this river on the ferry was about 20 minutes. Soon after commencing his meal he heard the train give what he believed to be a signal for its departure from the ferry. The man in charge of this eating house said to appellant: 'You better hurry up. The train will pull out and leave you.' Mr. Allen testified in this connection on his direct examination as follows 'So I just quit eating right there, and paid him for my meal, and walked out, and as I went out the train was moving off. Q. Let me ask you right there, where was the train when you went out, with reference to where you were; that is, on the ferry? A. Well, it was towards the other end of the boat. Q. That is, it was towards this side--the Washington side? A. Towards the Washington side; yes, sir. Q. And you saw it moving, did you, as you came out? A. Yes, sir. Q. And believed that to be your train, did you? A. Yes, sir. Mr McElroy: I object now to the leading of the witness, if the court please. The Court: I think the questions are leading. Q. What did you do, then, upon coming out and seeing your train? A. Well, I saw the train moving out, and started to catch the train, and I started with a little run to catch it and it was close to the other end of the ferry, and, as I jumped on the step of the platform--on to the platform of the last car--why, I got one foot on and stepped up to the second step, and as I did so the train gave a very sudden lurch or jerk, and overbalanced me and throwed me off the car, and I struck some timber or piling or something. I don't know what. Q. How fast was the train moving when you came out of the eating house there? A. Well, it was not going fast at all. I did not have no trouble to catch it. I have often caught trains. * * * It was not going over a mile an hour, I don't think. * * * Q. Now, where was this obstruction, with reference to the right of way or the passageway leading from the ferry up on to the mainland? * * * A. Well, it could not have been only just---- It was right close to the car, because I remember when I over-balanced on the step with the jerk--with the forcible jerk--that the engine or the car gave, it overbalanced me, and I just tipped backwards, and it struck me some way. I don't know how.' Appellant suffered severe injuries, and was picked up in an unconscious condition, in which state he remained for several days. Appellant testified that he received no warning that he should not board the train. Timothy Mahoney, a witness for respondent, testified, in part, that in January, 1902, he was a deckhand on this ferryboat; that witness had his regular work to perform; that it was witness' duty, if he saw anybody about to board the train, whom he thought was liable to get hurt, to stop him. 'The train was in motion. Mr. Allen made a move to get on the train, and I told him not to get on, and that is all there is to it.' E. E. Weymouth, one of respondent's witnesses, testified that he was the supervisor of bridges and buildings on the Pacific Division of the respondent company; that the clearance between the platform of the coach and the lever or upright with which appellant came in contact when injured was about 26 inches; that this appliance is absolutely necessary for the operation of the pontoon and the receiving of the ferryboat. It also appeared by the testimony that the engine while attached to the cars first moved slowly, and then, as the incline from the ferry to the station at Kalama was approached, it was necessary to increase the speed in order to make the ascent. It would seem from the evidence that the cars must have been in motion for at least 200 feet when appellant boarded this particular car. The following statement, explanatory of appellant's contentions, appears in the brief of his counsel: 'The acts of negligence which were alleged and found by the jury to have caused appellant's injuries were the failure of respondent to provide facilities which would have enabled the appellant to safely board the train; starting the train suddenly after appellant had boarded the same; and placing and maintaining in the passage and right of way leading from the ferry a pile, or obstruction of like nature, which rendered the right of way dangerous to passengers situated as was appellant, on trains leaving the ferry.' The jury by its verdict affirmed that appellant was free from contributory negligence in boarding the train, and that he was not warned against so doing by any employé of respondent. All conflict in the testimony was settled by the jury. Therefore the sole question raised on this record is whether the evidence adduced at the trial shows or tends to establish that appellant was injured by the negligence of respondent company, as alleged. Appellant, under the issues as formulated by the pleadings, assumed the burden of proof in that behalf.

The question of negligence is one of law, for the court, only where the facts are such that all reasonable men must draw the same inference from them, and when the conclusion follows, as a matter of law, that no recovery can be had upon any view which can properly be taken of the facts the evidence tends to establish. Towle v. Stimson Mill Co. (Wash.) 74 P. 471.

It is urged by appellant that, whenever a passenger is injured by something which is under the control of the carrier, the fact of the injury is itself prima facie evidence of negligence on the part of the carrier. In Hawkins v. Front Street Cable Ry. Co., 3 Wash. St. 592, 28 P. 1021, 16 L. R. A. 808, 28 Am. St. Rep. 72, which was an action to recover compensation for injuries sustained by Marie Hawkins, one of the respondents, while she was a passenger riding upon one of appellant's street cars, the trial court, among other things, instructed the jury that 'It is the law that, where a passenger being carried on a train is injured without fault of his own, there is legal presumption of negligence, casting upon the carrier the burden of disproving it.' This court held that 'such is not the law as laid down by very numerous authorities.' At page 597, 3 Wash. St., page 1023, 28 Pac., 16 L. R. A. 808, 28 Am. St. Rep. 72, in the opinion delivered by Stiles, J., the following language, from Meier v. Pa. R. R. Co., 64 Pa. 225, 3 Am. Rep. 581 is quoted with approval: 'Prima facie, where a passenger being carried on a train is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. This is the rule when the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care by those employed, or by any other thing which the company can and ought to control as a part of its duty to carry passengers safely; but this rule of evidence is not conclusive.' Again, in the opinion of the court in Klepsch v. Donald, 8 Wash. 164, 35 P. 622, this language is used: 'A passenger on a railroad train is injured, and the fact of injury alone does not sustain a charge of negligence; but, if the train was derailed by reason of a broken wheel, the presumption arises that the carrier was negligent in not providing a sound one.' In Gleeson v. Virginia Midland R. Co., 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458, the court held that an accident happening to a passenger riding on the railway of the carrier, caused by the train coming in contact with a landslide, raises, when shown, a presumption of negligence on the part of the carrier, and throws upon it the burden of showing that the slide was in fact the result of causes beyond its control. The general language employed in the court's opinion, quoted by the appellant, should be considered with reference to the facts of the particular case decided. 'It is therefore too broad a statement of the rule to...