Anderson v. Northern P. Ry. Co.

• Decision Date: 20 May 1898
• Parties: ANDERSON v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

53 P. 345

19 Wash. 340

ANDERSON v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

May 20, 1898

Appeal from superior court, Lincoln county; C. H. Neal, Judge.

Action by Mary J. Anderson, administratrix of the estate of Charles W. Anderson, deceased, against the Northern Pacific Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Stoll, Stephens, Bunn & Macdonald (C. W. Bunn, of counsel), for appellant.

N. T Caton and Mount & Merritt, for respondent.

SCOTT C.J.

This action was brought by the plaintiff to recover damages of the defendant for the death of her husband. Before argument on the merits, a motion was made by respondent to strike an additional brief filed by one of the general attorneys for the company, but who was not an attorney of record in the case. The brief having been filed irregularly and out of time, the motion to strike was granted. Also, the appellant moved to strike several orders made by the court some months after the settlement of the statement of facts, granting a motion to strike therefrom an exception to one of the instructions. The statement was filed and served in January 1898. No amendments having been proposed, after the lapse of time provided therefor the statement was settled accordingly. It is conceded that the exception to the instruction was contained in the statement as filed, served and settled, but it was contended by the respondent that it was not in fact taken at the time of the trial. This was disputed by the appellant. The instruction related to the measure of damages, and is conceded to have been erroneous. The statement was prepared under the direction of counsel who did not try the cause. There being no fraud claimed or shown, and it being a disputed question as to whether the exception was taken, considering the regularity of the settlement, the court was of the opinion that the exception should stand, and the motion to strike the subsequent orders was granted. The verdict recovered was in the sum of $30,000, and was largely excessive. The deceased was not a skilled workman, but an ordinary laborer, 42 years of age, and had not earned at any time to exceed $50 per month, and that as a railroad laborer. At the time of his death, and for some time previous thereto, he was working in a saloon, at $30 a month. Were it only a question of excessive damages, and no error of law, the court might have followed the plan sometimes adopted of allowing the plaintiff to elect to take a lesser sum; but there are other and more important questions raised, going to the right of the plaintiff to recover at all, and it will be necessary to make a fuller statement of facts.

The defendant was the owner of an irregular tract of land, of some extent, near the business portion of the city of Sprague, which had been used by it as a yard and site for its railroad shops. In the summer of 1895 the shops were destroyed by fire, and temporary structures built, which were used for some time, and then removed, and the yards abandoned except for a pump house. The property was unfenced, and persons were in the habit of crossing it on the way between their homes and the business portion of the city. In this plat of ground was a pit five feet deep, six feet wide, and from eight to eleven feet long, left exposed, which had been formerly used by the company in cleaning its engines. Its use was discontinued some months previous to the injury, which happened on the 24th of March, 1897. The sides of the pit had been walled up with stone. The night of the 24th of March was a dark and stormy one, and the evidence went to show that the deceased, in going from the place where he was at work to his home on said night, fell into this pit, striking his head against the opposite wall, resulting in injuries which soon caused his death. It is contended by the appellant that the proof was insufficient to show that the deceased came to his death in this manner. It was proved that he was found in the pit next morning, severely injured, apparently by a fall, and unconscious, there being blood upon the wall where...