Berg v. Seattle, R. & S. Ry. Co.

• Decision Date: 24 September 1906
• Citation: 87 P. 34,44 Wash. 14
• Court: Washington Supreme Court
• Parties: BERG v. STATTLE, R. & S. RY. CO.

87 P. 34

44 Wash. 14

BERG v. STATTLE, R. & S. RY. CO.

Supreme Court of Washington

September 24, 1906

Appeal from Superior Court, King County; George C. Hatch, Judge.

Action by Thomas Berg against the Seattle, Renton & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed with directions to dismiss.

Fullerton Hadley, and Dunbar, JJ., dissenting.

John P Hartman, for appellant.

Walter S. Fielton and Martin J. Lund, for respondent.

MOUNT, C.J.

Action for personal injuries. Plaintiff recovered a judgment for $5,000. Defendant appeals.

The appellant operated a line of electric street railway between Seattle and Renton, a distance of 12 miles. The line consisted of a single track, with numerous switches and side tracks or turnouts. There were but two through cars between Seattle and Renton. There were four or five local cars running between Seattle and Rainier Beach, which was a station some eight miles out of Seattle. The respondent was employed as a motorman on one of the through cars. These two through cars were called express cars by reason of the fact that they were not required to stop at all of the stations and street crossings, and because it was the duty of the local cars which stopped at each street crossing to turn out on the sidings in order that the through cars might pass them. All the cars ran on schedules fixed by the railway company. The railway company had constructed a block-light system, known as a single-block system, between Norman street and Lane street in the city of Seattle. The distance between these two streets was 1,665 feet. There were sidings at Norman street and at Lane street, but none between these points. The grade was not level, but the railway line was straight between these points so that a car could be seen in the day time from one end of the block system to the other, except in foggy weather. Norman street was further south from Seattle than Lane street. Renton was in a southerly direction from Seattle. The block-light system consisted of five poles about equal distance apart, one pole being at Lane street, one at Norman street, and the other three between these two extremes. On each of these poles were two red incandescent electric lights. When the lights were turned on at Norman street by means of a rope or lever, one red light burned on the north side of each pole through to Lane street. When the lights were turned on at Lane street they burned on the south side of each pole through to Norman street. The lights could be turned off only at the point where they were turned on. These lights were for use in the nighttime and in foggy weather. The motormen on all cars were required to turn on the lights when entering the block and the next car back was required to turn the lights off. It was the duty of conductors to see that the motormen turned the lights on and off. On the morning of October 25, 1904 respondent, as motorman on his car, left Renton for Seattle. When he arrived at Norman street he says he was a little late, a minute or two. The morning was very foggy. He found the lights turned to the north, indicating that a car was preceding him through the block. The lights were not burning to the south. The conductor on respondent's car told respondent to proceed through the block. Respondent thereupon proceeded at the rate of about eight miles per hour, and, at about the middle of the block, after he had gone a distance of 870 feet, he collided with a car coming south, and was severely injured. The motorman on the south-bound car had neglected to turn on his lights south, and had proceeded with those lights not burning. Respondent stated that if these lights had been thrown on, he would have seen them and the accident could not have happened. The motorman on the south-bound car testified that he did not turn his lights on because the conductor on the car preceding respondent's car had just come through the block and changed to the car south bound, and said that the north lights were his lights thrown on by him as he had just come through the block. There was dispute at the trial as to what the rules of the company were with regard to the use of the lights, the company claiming that the motormen were prohibited from passing a burning light which such motorman himself had not turned on, while respondent's evidence was to the effect that motormen were only prohibited from running on lights pointing against the way his car was going. We must assume, for the purposes of this case, that the rule of the company was as stated by the plaintiff. The question is then squarely presented, whether the failure of the conductor and motorman, whose duty it was to turn the lights on, which they neglected to do, rendered the company liable to the respondent. In other words, were the motorman and conductor on the one car fellow servants of the motorman and conductor on the other car?

It seems to us that there can be no escape from the conclusion that they were fellow servants. They were each engaged in the same common employment, meeting and passing each other frequently and associating together every day. This case cannot be distinguished from the case of Grimm v. Olympia Light & Power Company (Wash.) 84 P. 635 Howe v. Northern Pacific...