Baker v. Tacoma Eastern Ry. Co.

• Decision Date: 06 December 1906
• Parties: BAKER et al. v. TACOMA EASTERN RY. CO.
• Court: Washington Supreme Court

87 P. 826

44 Wash. 575

BAKER et al. v. TACOMA EASTERN RY. CO.

Supreme Court of Washington

December 6, 1906

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Julia A. Baker and others against the Tacoma Eastern Railway Company. From a judgment in favor of defendant plaintiffs appeal. Affirmed.

Govnor Teats and William P. Raynolds, for appellants.

Shackleford & Hayden, for respondent.

DUNBAR J.

Joseph Baker was run over and killed on the morning of July 28 1905, on East D street in the city of Tacoma, where the Northern Pacific railway tracks cross the same, by a long Tacoma Eastern Railway train loaded with logs, backing down upon him, without any lookout or rear brakeman upon the train to protect the people passing along the street. The plaintiffs, wife and daughter of the deceased, sued to recover for the wrongful death.

The complaint alleged negligence on the part of the respondent in not having a guard upon the rear end of the train. It appears from the complaint that East D street is one of the thoroughfares over which many people pass, and especially so at the hour of 7 o'clock in the morning, which was the time this accident occurred, as it is the street leading from their homes to the numerous factories, railroad shops, and mills, upon the tide flats; that the Northern Pacific tracks, consisting of about seven or eight tracks cross East D street at about right angles, and its roundhouse is located near East D street; that, at the time of the accident, Northern Pacific engines were coming out of the roundhouse, going up East D street on the several tracks, two or three at a time, puffing, ringing bells, and blowing off steam; that the defendant, at the time of the accident, was running or backing its train of about nine cars, with great speed, over one of the parallel tracks across said East D street, with a locomotive upon the rear end of the train which the defendant was backing. Baker was an employé of the Northern Pacific Railway Company at its roundhouse just east of D street. The Tacoma Eastern Railway Company has a depot just west of D street, about a block to the south of the railroad track, and its tracks are so arranged as to connect with the Northern Pacific tracks, and to switch back and forth upon them and across East D street, down to the city waterway where it unloads its train loads of logs. It appears that while the engines were ringing their bells and blowing off large quantities of steam, and when one of the engines of the Northern Pacific was on the track in front of him, and another had passed up along towards the west, probably 50 or 60 feet, and another engine was coming towards him, and other engines were on the tracks in the immediate vicinity, Mr. Baker came diagonally across the street crossing, his attention riveted upon the engines which were coming towards him; that, at the time he was crossing the track upon which he was killed, he had his back towards the west, or his left side and back towards the west as he went in the diagonal direction, when the logging train backed on him, and threw him down onto the south rail of the track, and ran over and killed him. Negligence was denied by the defendant, and contributory negligence alleged. After the issues were made up, it was stipulated that a statement of the case by the plaintiffs should be made, and that the court should then pass upon the right of the plaintiffs to recover. After such statement was made, construing the statement of the plaintiffs and the pleadings, the court found that the plaintiffs were not entitled to recover, and dismissed the action. From this judgment of dismissal this appeal is taken.

The statement is quite lengthy, but we think we have said sufficient to present the situation fairly. It is the contention of the appellants that it was negligence on the part of the respondent, under the circumstances, as shown by the complaint and the statement, to back its cars down across a street where pedestrians were crossing in great numbers without a lookout or brakeman on the rear end of the cars. Conceding, for the purposes of this decision, that it was negligence for the railroad company to back the train across the street without a watchman, yet we think the appellants cannot recover, for the...