Allend v. Spokane Falls & N. Ry. Co.

• Decision Date: 10 July 1899
• Citation: 58 P. 244,21 Wash. 324
• Court: Washington Supreme Court
• Parties: ALLEND v. SPOKANE FALLS & N. RY. CO.

58 P. 244

21 Wash. 324

ALLEND v. SPOKANE FALLS & N. RY. CO.

Supreme Court of Washington

July 10, 1899

Appeal from superior court, Spokane county, William E. Richardson Judge.

Action by Henry Allend against the Spokane Falls & Northern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Albert Allen and Jay H. Adams, for appellant.

Henley, Kellam & Lindsley, W. H. Plummer, and W J. Thayer, for respondent.

FULLERTON, J.

The appellant is a railway corporation owning and operating a line of railway in this state. In the month of April, 1897 the respondent was one of its employés, engaged, as a common laborer, with others, in riprapping and repairing certain parts of the appellant's roadbed in the vicinity of Marcus, in Stevens county, in this state; all working under the supervision of one George Harkleroad. The appellant used in this work a construction train consisting of an engine certain flat cars, and a caboose, for the purpose of transporting the necessary materials, the laborers, and their working tools, from place to place, as the exigencies of the work required. On the morning of the 28th of April, 1897, the train, being at Marcus, went over the road for a couple of miles, where the trainmen loaded in the caboose certain tools and a box of giant powder and fuse. The fuse was wrapped in a paper and placed on top of the powder. The train then went back to Marcus, where the respondent and his co-laborers boarded the caboose, and the train proceeded on its way towards the place of labor for the ensuing day. After the train had gone for some distance an alarm was raised, whereupon it was discovered that the paper wrapped around the fuse was on fire, and the men hurriedly endeavored to get off the car. When the fire was discovered the train was going at considerable speed, but began to slow up when the alarm was sounded. The respondent reached the back step of the caboose, where he stopped for an instant, waiting for the speed of the train to slacken so that he might jump off with greater safety, when the powder exploded. The explosion tore away all of the superstructure of the car, causing pieces of board to fly in all directions, one of which struck the respondent on the head over the ear, by reason of which, he alleges, his ear was permanently injured. The respondent contends that the explosion occurred because of the negligence of the railroad company, and brought this action to recover damages for his injuries.

In his complaint, after the preliminary allegations, the respondent alleges that one George Harkleroad was the foreman employed by the appellant, and was by the appellant given authority over him, with power to direct his work, labor, and movements, and that he was in all things required by the terms of his employment to follow the instructions of Harkleroad; that he boarded the car at the direction of Harkleroad, without being informed or having knowledge that it contained any dangerous explosive,--the sixth, seventh, and eighth paragraphs of the complaint being as follows: '(6) That the engine to which said caboose was attached was in such a defective and worn-out condition, and so carelessly managed by said defendant, that it emitted a large volume of dangerous sparks, and, if defendant had exercised ordinary care in and about the construction and use of said engine, said sparks would not have been emitted, and the explosion hereinafter mentioned would not have occurred. (7) That on said 28th day of April, 1897, after plaintiff had boarded said caboose, and while riding thereon to his place of labor as directed by said defendant, said explosive substance was ignited by the sparks emitted by said engine, and without warning, and without plaintiff having an opportunity of saving himself from injury, said explosive substance exploded with terrific force and violence, and caused the injuries to plaintiff hereinafter mentioned. (8) That said explosive substance was concealed in said car and covered up in such a way by defendant that no one could tell that any explosive substance was there, and the same constituted a latent and terrible danger, which was well known to the defendant and unknown to this plaintiff, and defendant ordered plaintiff to board said car and place himself in close proximity to said explosive substance, and to put himself in imminent danger of his life, well knowing the peril to which plaintiff was being exposed; and defendant did not exercise reasonable care, or any care at all, and was negligent and careless, in storing and carrying said explosive substance as alleged herein, and ordering plaintiff near it without plaintiff's knowledge, and in using a defective engine, and was negligent in not warning plaintiff of the danger to which he was exposing himself. And defendant negligently placed and allowed said explosive substance to remain in a position where it was probable and likely to be exploded by the sparks coming from said engine.' The complaint concluded with an allegation of the nature of his injuries. The appellant, answering the complaint, denied generally the allegations of respondent, and by a special paragraph set up contributory negligence, and alleged that whatever injury happened to respondent resulted from an accident and risk incident to respondent's employment. The respondent replied by a general denial of the new matter in the answer, and on the issues thus raised a trial was had, resulting in a verdict and judgment for respondent in the sum of $2,000.

The first objection urged here is that the lower court erred in refusing to take the case from the jury on appellant's request made at the close of respondent's testimony. This motion was based upon the concluding part of the sixth paragraph of the complaint. It is urged that the respondent, by the allegation, viz. 'If defendant had exercised ordinary care in and about the construction and use of said engine, said sparks would not have been emitted, and the explosion hereinafter mentioned would not have occurred,' has elected to make the defective construction and careless management of the engine the proximate and only cause of the explosion, and that all other allegations in the complaint, such as placing the giant powder in the caboose and failing to warn respondent thereof, and the failure to take the proper precaution to keep the explosive without the reach of sparks from the engine, are mere matters of inducement, and were made to show that the respondent did not assume the risk incident to his employment; that there was a total absence of proof that the engine was defective or worn out, or that it was carelessly managed, and hence there was no evidence to go to the jury. The Code (section 4994, Ballinger's Ann. Codes & St.) provides that 'in all cases tried in the superior court with a jury in which the legal sufficiency of the evidence shall be challenged, and the court shall decide as a matter of law what verdict should be found, the court shall thereupon discharge the jury from further consideration of the case, and direct judgment to be entered in accordance with its decision.' This procedure is somewhat analogous to the old practice of demurring to the evidence. Under that practice the court, in determining the question of the sufficiency of the evidence to justify a verdict, looked to the evidence solely, and disregarded any defect in the pleading. The demurrer was held to waive all objections to the admissibility of the evidence, and hence the complaint was treated as sufficiently broad to cover all that the evidence, taken in its most favorable light, tended to prove. It will be noticed the appellant does not contend in this branch of its argument that the evidence which was before the jury was not sufficient to warrant a recovery, had the complaint been as broad as the evidence, but its argument is that the pleader, having chosen to narrow his complaint to a specific act of negligence, cannot recover unless he proves that specific act, notwithstanding his evidence shows other acts of actionable negligence. If it be permissible to apply to its motion the rules applicable to the practice where a demurrer to the evidence is permitted, it would seem that the question here argued was not raised by the objection as made, and, to be available, should be taken in some other form. McLean v. Society, 100 Ind. 127; Stiles v. Inman, 55 Miss. 469. But, passing this, we are unable to concede that this clause of the complaint should have the conclusive effect put upon it by the appellant. It is not an allegation of a fact, nor anything more than the pleader's conclusion drawn from the facts stated in the preceding part of the paragraph. As such, it is an immaterial allegation, incapable of being established by proofs, and one which would have been stricken by the court, had a motion been made for that purpose at the proper time. Being thus immaterial, it will not be held to limit the proofs to the allegation that the engine was defective or carelessly managed.

It is next urged, in this connection, that there is no evidence...