Anest v. Columbia & P.S.R. Co.

• Decision Date: 15 February 1916
• Docket Number: 12874.
• Citation: 154 P. 1100,89 Wash. 609
• Court: Washington Supreme Court
• Parties: ANEST v. COLUMBIA & P. S. R. CO.

154 P. 1100

89 Wash. 609

ANEST v. COLUMBIA & P. S. R. CO.

No. 12874.

Supreme Court of Washington

February 15, 1916

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Gust Anest, administrator of the estate of Keneages Flengern, deceased, against the Columbia & Puget Sound Railroad Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Farrel Kane & Stratton and Stanley J. Padden, all of Seattle, for appellant.

Revelle Revelle & Revelle, Higgins & Hughes, and James McCabe, all of Seattle, for respondent.

HOLCOMB J.

On Sunday, December 15, 1912, Keneages Flengern, while employed in inspecting appellant's railroad track by the order of his immediate superior, the section foreman, was killed. He was riding eastward from Renton upon a 'speeder,' or handcar, operated by himself at the time. The morning was cold and stormy, and the deceased had on, when found immediately after the accident, a Swedish cap with flaps fastened over his ears and tied under his chin. At a point about 1,000 feet east of a bridge called bridge No. 7 there is a curve to the south in the track. An engine without any car attached was backing down across the bridge, eastward and around the curve, at a speed of about 20 miles per hour. It was running from Renton to Maplewood Farm to 'pick up' a car. There were on this engine the engineer fireman, and a brakeman. The engineer was in his place on the seat box at the right side of the engine when facing toward its head or left side of it as it was going, and the fireman and brakeman sat on a seat box on the opposite side, except when the fireman was attending to his duties. There was no man stationed on the rear of the tender or tank of the engine to ascertain if the track was clear and give signals to the engineer. An engine such as that one, running as it was, can be stopped, according to the condition of the track, in from 150 to 300 feet, if properly equipped. The engineer, a witness for plaintiff, said that, when just at the end of and coming out of the curve, the fireman saw the speeder ahead on the track, and called out to the engineer to whistle. They were then about two car lengths from the speeder. He immediately applied the emergency brakes, and brought the engine to a stop within about 300 feet. Before stopping the locked wheels slid some distance, and the rear of the engine, being the end of the tank, struck the speeder upon which deceased was riding, knocking him off, and inflicting upon him fatal injuries. The engineer could not see the speeder before the fireman called out, because he was on the left-hand side and in the bend of the curve. The fireman and brakeman for the appellant both state that they did not see the speeder until the moment the fireman called to the engineer. The deceased had his back to the engine.

The evidence is undisputed that the track upon which deceased was riding, which he was inspecting, and upon which he was killed, was appellant's main line track, and, although its railroad lies wholly within King county, state of Washington, it was then being used in transporting cars that went out of the state carrying both intrastate and interstate commerce. The deceased was 45 years of age at the time of his death, and left surviving him a widow and three minor children, all dependent upon him, but living in Greece.

The case was tried to the court without a jury, and the court, after the conclusion of the testimony, and, as he certifies, 'with the consent of and accompanied by both parties hereto and their respective counsel, viewed the premises where the accident occurred, and also Columbia & Puget Sound engine No. 5, which ran down the deceased.' There were findings and conclusions and judgment against appellant for damages in the sum of $3,700, apportioning $2,835 thereof to the widow, $115 to a minor daughter, $350 to one minor son, and $400 to another minor son.

The complaint charges, in effect, that the appellant was negligent: (1) Because it failed to station a man on the rear of the engine to ascertain if the track was clear; and (2) because it failed to exercise reasonable care in the operation of its engine and tender to avoid the collision and consequent injury to the decedent after the company, its agents and officers, became aware of the presence of the decedent upon its track. The answer pleads assumption of risk and contributory negligence, and denies the allegations of negligence, relationship, and damages, and the further allegation that the things which the decedent was doing were incident and necessary to the carrying on of the business of interstate commerce by appellant and that the decedent was employed by appellant, aiding and assisting it in carrying on its interstate commerce business.

1. It is contended by appellant that respondent failed to show a cause under the Employers' Liability Act. This contention is without merit. It was alleged in the amended complaint, and not denied in the answer, that appellant was at the time of the injury engaged in interstate commerce. It is shown that the injury occurred on its main line railroad track, and that the decedent was engaged in inspecting the condition of this main line railway track to see that no obstructions or defects existed thereon. It is true that the true test for determining whether the employé is engaged in interstate commerce is the nature of the work being done at the time of the injury. Illinois Cent. Ry. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163. In that case the deceased was engaged at the time he was killed in switching cars that contained only intrastate freight. A few minutes before that he had been switching interstate freight. The court held that he was not within the act. Other similar cases are cited. In the present case there could be no possible separation of decedent's inspection of appellant's track for the purpose of its intrastate commerce and of its interstate commerce. The two were obviously concomitant. His inspection was for the purpose of aiding and assisting the appellant in the operation of its trains, cars, and locomotives, and the carrying on of its business both of interstate and intrastate commerce. Pederson v. Del., etc., R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153.

2. It is insisted that no negligence was proven upon which a finding of the court of negligence on the part of appellant could be based. The first part of this finding is that the company carelessly, wrongfully, and negligently, and, without having used due care to station on the rear of the tender of the engine any brakeman or other person for the purpose of ascertaining if the track was clear, backed the tender and engine over the tracks down upon the deceased. A rule of the company introduced in evidence by respondent was as follows:

'When a train is pushed by an engine, except when switching and making up trains in yards, a trainman must be stationed on the front of the leading car, with proper signals so as to perceive the first sign of danger and immediately signal the engineer.'

Another rule of the company introduced in evidence is as follows:

'An engine without cars in service on the road shall be considered a train.'

The engine in question was out upon the main line of the railroad, running from one station to another for the purpose of getting freight cars, and had no cars attached and being pushed ahead, except its tank or tender car, was running backwards, and was not engaged in switching or making up the trains in yards. Appellant urges that no man was therefore required to be stationed on the end of the engine tender any more than one would be required on the front of it when running forwards on the road, and it was shown without contradiction that it was not customary with this and other roads to so station a man when running alone on the road backwards. Ever if there were no such rules of the company, respondent argues that the appellant might be liable if it failed to use reasonable care in regard to having a man so stationed (citing St. L., I. M. & S. Ry. Co. v Jackson, 78 Ark. 100, 93 S.W. 746, 6 L. R. A. [N. S.] 646, 8 Ann. Cas. 328; Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135, 33 N.E. 403); that it therefore was a question of fact in this case whether or not there was negligence in failing to have a man so stationed, so as to observe and perceive the first sign of any danger or obstruction upon the track. The testimony of respondent's witnesses was clear and positive that there was nothing to obstruct the view of the fireman of the engine for the 1,000 feet traversed between the end of the bridge and the poing of collision. The engineer himself stated that the weather conditions were such as to permit seeing as far as half a mile. He himself could not see the speeder on which deceased was riding, for the reason that he was situated on the outside of the curve as the engine proceeded, but the fireman was sitting on the inside and would thus have a further view. The brakeman, a witness for appellant, testified that he saw the deceased ahead of him for a distance of about 300 feet, and the fireman testified that he saw him 100 or 150 feet, though neither of them disputed the engineer's testimony that neither the brakeman nor the fireman gave the engineer any warning until the engine was about two car lengths, or a little over 60 feet, away from the speeder. As it required about 150 feet according to some witnesses, and about 300 according to others, to stop such an engine when running at the rate of 20 miles per hour, it was manifestly then too late to stop in order to avoid a collision. As the evidence was conflicting upon this...