Birrell v. Great Northern Ry. Co.

• Decision Date: 21 December 1910
• Citation: 112 P. 362,61 Wash. 336
• Court: Washington Supreme Court
• Parties: BIRRELL v. GREAT NORTHERN RY. CO.

112 P. 362

61 Wash. 336

BIRRELL v. GREAT NORTHERN RY. CO.

Supreme Court of Washington

December 21, 1910

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Anna Birrell against the Great Northern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E. P Dole, for appellant.

F. V Brown and Frederic G. Dorety, for respondent.

MORRIS J.

Appellant is the widow of J. W. Birrell, who was killed by being struck by an engine of the respondent company on December 26, 1909 and brings this action to recover for such death. Upon the trial below the court directed verdict and judgment for defendant, and plaintiff appeals.

The accident occurred in the railway yards at Seattle. Deceased was a dining car conductor, and had been directed to exchange cars with another conductor named Chapman. They finished checking up their cars which were lying in the coach yards, about one-quarter of a mile south from the union depot, and, having received the O. K. of the commissariat office, started north through the yards to reach the exit at the depot. It was then about 7 o'clock in the evening, and dark. As they walked north, they proceeded along what is known as the six-foot path, being a space between the two main tracks, six feet wide from tie to tie. In the middle of this path about every 100 feet was a switch stand, which showed different colored lights at night, indicating to the engineers of incoming and outgoing trains the condition of the numberous switches or tracks running from the main track. Deceased and Chapman had proceeded but a short distance on this path when a passenger train south-bound left the depot, and passed them on the left or west track. They knew that trains were due to arrive and depart at about that time, and they concluded between themselves that this six-foot path was too dangerous, and that it would be safer to turn to the right, cross the east track, and walk north along a path running at the east of this track. To the right of this track was a marsh, wet and muddy, to which the ground on the east slopes, the path being on the top of the slope and about two feet wide, and the same distance from the track to its outer edge. From this path the ground slopes sharply to the marsh. The ties extended about a foot or a foot and a half beyond or outside of the rails, so that this path was from 6 to 12 inches wide outside the ties. It was not lighted. They has proceeded about 50 yards, walking side by side, Chapman along the slope and deceased upon the path when suddenly Chapman says he felt something brush his shoulder, and saw Birrell thrown under a switch engine which had approached from the south without warning of any sort, and that he neither heard the sound of its approach nor saw any flash or showing of headlight along the track. There was testimony to the effect that this path was much used by employés leaving the yards, and that it was regarded as a safe way. Chapman further testified that the switch engine proceeded about two lengths after striking Birrell, when it stopped, and the engineer came back and said he did not see anybody upon the track, and that he was 'firing at the time.' Deceased had been running out of Seattle for about 3 months, returning every fourth day, and remaining some 32 hours before again taking his run. Upon each of these occasions he would walk through this same yard in leaving and returning to his car. It also appeared in the testimony that 'there are local trains going in and out, and also two through trains around about that time,' and that switching engines 'are running all the time. * * * They have to work night and day, * * * and are running backwards and forwards there all the time, * * * working up and down the yards all day and all night.' These are the main facts upon which the court below adjudged deceased guilty of contributory negligence, and upon which the ruling appealed from is predicated.

In determining the question of contributory negligence, it is difficult to announce a rule which will alike fit all cases. As is said in Keefe v. Seattle Electric Co., 55 Wash. 448, 104 P. 774, cited by appellant, negligence is a relative question, and the conduct of deceased must be measured with the line of ordinary prudence. 'The facts declare the law in such cases,' and 'it all comes down to the question of ordinary care under the given circumstances,' and 'it is only when * * * the situation as to negligence is so plain, clear, and unequivocal as to admit of but one answer that the court may declare negligence as a matter of law.' Henry v Seattle Electric Co., 55 Wash. 444, 104 P. 776. Applying these rules for the measurement of the conduct of deceased, to determine whether or not he acted as a man of ordinary prudence would have acted at such a time, in such a place, with such a knowledge of the conditions confronting him and to be anticipated, we can make but one answer, the same as made by the court below. The courts have said over and over in deciding cases of this character, and it is the undoubted law that men who know and appreciate the dangers of their surroundings cannot throw the entire burden of their safety upon others. Nature has given men senses to aid them in self-protection, and when, under such circumstances as we have before us, men refuse to employ or use such senses in their protection, they are guilty of such contributory negligence as to preclude a recovery in case of injury. Deceased and Chapman where in a place of comparative safety upon a hard, dry, smooth-surfaced path, 6 feet wide from tie to tie, between two parallel tracks, having switch stands in its center line about 100 feet apart, showing a light--a path familiar to them and doubtless often traveled, the path which naturally would suggest itself as the path to reach the exit. This is apparent from the fact that they took this path without any discussion as to the proper path to take, and it did not occur to them that it was dangerous until the train passed them on the west track, going south. Chapman testifies that the ordinary engine would extend a foot and a half over the rails; switch engines still farther. That would be about the distance of the ties beyond the rails, so that, if two trains should pass each other, a person walking on this path would have a safety zone approximately six feet wide, with its center line fixed by the lights of the switch posts. If such a path suggested danger to deceased because of the frequent passing of trains or switch engines on its parallel tracks, what greater safety could there be in the path chosen in its stead, approximately six inches wide beyond the end of the ties which extended from one foot to a foot and a half beyond the rail, giving a space two feet wide on top, then sloping sharply to the water, with no lights to guide one? If there was danger in the six-foot path from passing engines, because of the extension of the engine beyond or over the rails, it is difficult...