Baird v. Northern P. Ry. Co.

• Decision Date: 06 February 1914
• Citation: 78 Wash. 67,138 P. 325
• Court: Washington Supreme Court
• Parties: BAIRD v. NORTHERN PAC. RY. CO.

138 P. 325

78 Wash. 67

BAIRD v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

February 6, 1914

Department 1. Appeal from Superior Court, Lewis County; Edward H Wright, Judge.

Action by J. A. Baird against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellant.

Govner Teats, Leo Teats, and Ralph Teats, all of Tacoma, for respondent.

ELLIS J.

Action to recover damages for personal injuries. The complaint alleges in substance that the defendant is and was, at all times mentioned, a corporation organized under the laws of the state of Wisconsin, owning and operating a transcontinental railway through the county of Lewis, with a junction point at Centralia; that 'on May 25, 1912, and for a long time prior thereto, the said defendant operated a work train hauling gravel and material in the construction and repair of that part of its transcontinental system located at Centralia; that the said work train was under the care and charge of a conductor, and upon which work train many men were employed in the work of constructing and repairing said defendant's tracks and yards used by said defendant in its interstate commerce at Centralia.' It is further alleged that the defendant obtained gravel and dirt used in the construction and repair of its tracks and yards from a gravel pit north of Centralia; that the employés working in the gravel pit and on the work train who lived in Centralia usually rode out to the pit in the morning and back in the evening on the locomotive; that on the evening of May 25th, while the plaintiff and other workmen were returning from the gravel pit, so riding, the locomotive was slowed down at a point in the city of Centralia about half a mile north of the depot for the purpose of allowing them to get off and go to their homes near by; and that, just as the plaintiff was about to step off, the engineer started the engine forward with a jerk which threw the plaintiff off, causing him to fall upon his arm, breaking one of the bones in the wrist, and inflicting permanent injury. As grounds of regligence, it is alleged that the defendant carelessly and negligently failed to provide a proper conveyance; that plaintiff was compelled to ride upon the pilot of the engine; and that, after the engine had slowed down for the purpose of permitting him to alight therefrom, the engineer negligently started the engine forward with a jerk, before the plaintiff had time to alight with such force as to throw the plaintiff out of his balance causing him to plunge forward, off of the engine, striking upon his left arm, breaking it at the wrist. The answer denied the allegations of negligence, denied that the plaintiff's work had any connection with interstate commerce, denied the nature and extent of the injuries, and pleaded, as affirmative defenses, contributory negligence, assumption of risk, and injury by negligence of a fellow servant. The reply traversed these affirmative matters.

The evidence showed that the plaintiff began work for the defendant in January, 1912; that he first worked in clearing ground for a new roundhouse in Centralia and assisted in plowing the ground and afterwards worked as cable man on the work train, hauling gravel from the gravel pit about a mile and a half north of Centralia to the yards at Centralia, where it was unloaded. The cars were unloaded by means of a plow or scraper drawn forward by a cable passing around a drum and operated by a Ledgerwood engine, thus shoving the gravel off through the side doors of the cars. The plaintiff's duties as cable man were to open the doors and attach the cable to the plow. The plaintiff and nearly all of the men working on the gravel train and in the pit lived in Centralia; he and some of the others about half a mile north of the depot, and between the depot and the gravel pit. When plaintiff first began work as cable man, the cars were left at the pit at night, and the engine, with the caboose attached, was brought in and left at the depot, and taken back again the following morning. The men would ride back and forth in the caboose. After a time the use of the caboose, for some unexplained reason, was discontinued, and those of the men who so desired were permitted to ride back and forth on the engine. The men who worked overtime or who failed to get on the engine would walk to their homes. There was no evidence of any contract or agreement on the defendant's part to carry any of the men from their homes to the pit, or from the pit to their homes. The most that the evidence showed in this particular was a permission to those who could be so accommodated to ride to and from their work on the engine. The accident happened about 15 or 20 minutes after 6 o'clock, and after the men had completed their day's work and were returning home on the engine. The evidence showed that in the morning, a few minutes before 7 o'clock, when the engine was going out to the pit, it would slow down and sometimes stop about half a mile north of the depot to allow the plaintiff and other men living in that vicinity to get on, and in the evening, when returning, the engine would slow down and sometimes stop at this same place so that the plaintiff and the others who lived near could get off; that when 6 o'clock, the quitting time, came, the men at the pit who were ready to come in would get on the engine any place they could, and those who were not ready would walk in; that on the evening of the accident the engine backed into Centralia from the pit; that the plaintiff stood upon a board which was extended across the front of the engine, above the pilot, a number of other men standing on the pilot; that all remained in this position until the engine slowed down at the place where the plaintiff and some of the others were to get off; that he stepped down onto the pilot, and was in the act of stepping off when the fireman, who had just stepped off, said to the engineer, 'Let her go,' and, as the plaintiff testified: 'I was just in the act of getting off, when they jerked the engine right square from under me, right square from under my feet, throwing me out, and in falling I broke my arm.' And again: 'It seemed as though they threw the thing wide open and jerked the thing right square from under me; that is the way it appeared to me.' All of the evidence fairly sustained this version of the occurrence. As to what was being done with the gravel, there was no evidence further than that it was used for making a fill at Centralia. There was no evidence that the men at the gravel pit were employed in any matter connected with interstate commerce, or that the fill for which the gravel was used was in aid of the defendant's interstate business. The plaintiff, over objection, was permitted to introduce in evidence defendant's rule No. 171 as to the duties of work train conductors, as follows: '171. Look after safety of employés engaged with train; examine grain doors and fastenings attached to cars, and see that they are in such condition that employés while working on or about the train are not exposed to risk or injury; report respecting work on which engaged to the officer in charge of such work, and telegraph the superintendent at the close of each day's work report of work done, causes of delays, work to be done the following day, and working limits required.'

At the close of the plaintiff's evidence, the defendant moved for a nonsuit on the ground of insufficiency of evidence, and that the evidence affirmatively showed that the plaintiff, at the time of the injury, was not under, or acting within, the provisions of the employers' liability act. The motion was denied. The defendant introduced no evidence, but then moved for a directed verdict. After argument, the court said: 'I am of the opinion that the evidence is not sufficient to warrant a recovery under the federal employers' liability act. The plaintiff at the time of his injury was not engaged in any act of interstate commerce. I will take the matter under advisement until morning.' The following morning, the court overruled the motion for a directed verdict, and instructed the jury on the theory that the relation of master and servant did not exist at the time of the accident, but that, if the plaintiff was riding upon the engine by invitation or direction, or with the consent of those in charge of the train, or in pursuance of a custom acquiesced in by the defendant, or if those in charge of the train knew of his presence on the engine, he would be a licensee, and that defendant owed him the duty of reasonable care, though not the high degree of care due to a passenger for hire. The cause was submitted to the jury upon these instructions, so far as the record shows, without argument of counsel.

The jury returned a verdict for the plaintiff for $4,000. The defendant moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. Both of these motions were overruled. Judgment was entered, and defendant appealed, assigning as error the overruling of the motions for an instructed verdict, for judgment notwithstanding the verdict, and for a new trial, the admission in evidence of rule No. 171, the giving of certain instructions by the court, and the refusal to give a requested instruction.

On these assignments, the appellant bases four contentions: (1) That the respondent, having brought his action by a complaint containing allegations appropriate to an action under the federal employers' liability act, could not recover upon evidence showing a liability, if any, as at common law; (2) that, in any event, the defense of negligence of a fellow servant was improperly...