Bolander v. Northern Pac. Ry. Co.

• Decision Date: 23 January 1964
• Docket Number: No. 37136,37136
• Citation: 388 P.2d 729,63 Wn.2d 659
• Parties: Elma J. BOLANDER, individually and as Administratrix of the Estate of James S. Bolander, deceased, Appellant, v. NORTHERN PACIFIC RAILWAY CO., a corporation, and the Timken Roller Bearing Company, a corporation, Respondents.
• Court: Washington Supreme Court

Page 659

63 Wn.2d 659

388 P.2d 729

Elma J. BOLANDER, individually and as Administratrix of the Estate of James S. Bolander, deceased, Appellant, v. NORTHERN PACIFIC RAILWAY CO., a corporation, and the Timken Roller Bearing Company, a corporation, Respondents.

No. 37136.

Supreme Court of Washington, Department 1.

Jan. 23, 1964.

Robinson, Landerholm, Memovich & Lansverk, Vancouver, for appellant.

Donald Simpson, Vancouver, Dean H. Eastman, Robert J. Allerdice, Seattle, for respondents.

HUNTER, Judge.

Elma J. Bolander, plaintiff (appellant), a resident of Vancouver, Washington, was a passenger on a westbound train of the Northern Pacific Railway Company, a corporation, when it was derailed about 40 miles west of Fargo, North Dakota, on February 21, 1961. She sustained personal injuries and subsequently brought this action, in her individual capacity and as administrator of her husband's estate, against the Northern Pacific Railway, defendant (respondent). She also joined the Timken Roller Bearing Company, a corporation, as a party defendant.

At the close of the plaintiff's case, in a jury trial, the defendant railway and the defendant Timken Roller Bearing Company challenged the sufficiency of the evidence, and the trial court entered a judgment dismissing both defendants with prejudice, from which the plaintiff appeals.

The plaintiff, in support of her assignment of error to the dismissal of the defendant railway, relies on the doctrine of res ipsa loquitur. The instant case is a typical situation for the application of the doctrine. The plaintiff through no fault of her own, received injuries resulting from a derailment while a passenger on a railroad common carrier. The rule was well stated in Williams v. Spokane Falls & Northern Railway Co., 39 Wash. 77, 80 P. 1100 (1905):

'* * * and the doctrine is almost universally announced that the fact that an injury results from a railroad collision without any fault of the passenger is prima facie evidence of carelessness, negligence, or want of skill on the part of the company, and the burden is upon it to prove that the accident was not occasioned by the fault of its agents. * * *'

In this case the evidence, when viewed most favorably to the plaintiff, shows the following: The bearings on the fifth wheels of car No. NP1636 became seized or frozen before the derailment. The wheels slid for sufficient time to wear 'slidflat' 8 1/2 inches on the tread and 5/8 inches deep. The flanges on the wheels originally extended to a height of 1 inch. When the flanges, by reason of the wear of the wheel tread, reach a length of 1 1/2 inches, the wheel is subject to be condemned by the railroad, because the flange is then extended below the top of the rail so that it is likely to strike track equipment resulting in abnormal shock, stress and strain to the wheel bearings. In the instant case, the flange was 1/16 inch over condemning limits on each wheel. The wheels had been operating in this condition for a substantial length of time as the wheel tread wears off only 1/16 of an inch every 16 to 20 thousand miles. The wheels had been inspected at St. Paul, Minnesota, a distance of approximately 250 miles. A reasonable inference could be drawn by the jury that the railroad agent either knew, or should have known, that the flanges on the wheels in question were over condemning limits at the time of the inspection, and that the abnormal strain placed upon the bearings by reason of the flanges striking obstructions alongside the inner rail had continued for such a period of time that they might crystalize, causing them to seize and ultimately result in the train's derailment.

In D'Amico v. Conguista, 24 Wash.2d 674, 167 P.2d 157 (1946), we quoted the following "Proof of regular inspection of the machine still leaves the question of negligence one for the jury. Lane v. Spokane Falls & Northern Railway Co., 21 Wash. 119, 57 P. 367, 46 L.R.A. 153, 75 Am.St.Rep. 821. The presumption is overcome as a matter of law only when the explanation shows, without dispute, the happening was due to a cause not chargeable to defendant's negligence. Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870."

We cannot say under the evidence introduced by the plaintiff in this case that the inference of the railroad's negligence was overcome. Whether or not the railroad was negligent is a question for the jury. Simply because the plaintiff has attempted to prove negligence, her right to rely on res ipsa loquitur, however, is not taken away. She may rely both on res ipsa loquitur and on claimed act or acts of negligence in support of her right to recover. Vogreg v. Shepard Ambulance Serv., 47 Wash.2d 659, 289 P.2d 350 (1955); Kemalyan v. Henderson...