Bortle v. Northern P. Ry. Co.

• Citation: 111 P. 788,60 Wash. 552
• Parties: BORTLE et ux. v. NORTHERN PAC. RY. CO.
• Decision Date: 23 November 1910
• Court: United States State Supreme Court of Washington

111 P. 788

60 Wash. 552

BORTLE et ux. v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

November 23, 1910

Department 2. Appeal from Superior Court, Pierce County; John A Shackleford, Judge.

Action by Lafayette Bortle and wife against the Northern Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed, with instructions to dismiss.

Geo. T Reid, J. W. Quick and L. B. Da Ponte, for appellant.

Bates Peer & Peterson and Lot Davis, for respondents.

MORRIS, J.

Respondents brought this action to recover for the death of their adult son, alleged to have been caused by the negligence of the appellant. The deceased was a hostler's helper at appellant's roundhouse at Tacoma. His work was assisting the hostler in taking engines from where they had been left by the road engineers, to the coal bunkers and ash pit. On the night of his death he had assisted in moving two engines and was engaged in moving the third, and when last seen alive was standing with his feet in the stirrups of the tank. When next seen he was lying on the ground unconscious, between the engine and a pile of wood that stood next to the track, at a distance variously estimated by different witnesses from 10 inches in the clear to 33 inches from the greatest projection to the center of the rail, the theory of respondents being that the deceased was brushed or pushed from the tank under the wheels of the engine by coming in contact with the wood pile, and that it was negligence to pile the wood so close to the track. The action was brought under Rem. & Bal. Code, § 194, providing that no action for personal injury occasioning death shall abate by reason of such death, if deceased leave parents who may be dependent upon him for support. There were, therefore, two issues in the case: (1) The negligence of the appellant; and (2) were respondents dependent upon the deceased for support? Judgment was in favor of respondents upon both issues, and the case is brought here, suggesting error in the denial of nonsuit and in the refusal to grant judgment notwithstanding verdict.

Under the statute the right of action is conferred, not upon parents as a class, but only upon those who may be dependent upon the deceased child for support. Manifestly, unless the evidence shows such dependence, respondents are not entitled to recover. The deceased was 25 years of age, and had for some years been away from home, working in various occupations, coming home 'a few times each year.' The father was 55 years old and the mother 51. There was another son 28 years old who worked on a ranch, and a daughter 16 years old who lived away from home, working for her board and going to school. The father testified that his health was not good, preventing him from doing hard manual labor, and that his business was soliciting for the sale of tea, in which he averaged about $40 a month, out of which he supported himself and wife, who also testified to being in bad health and under a doctor's professional care. The father could give no definite statement as to when or how much the deceased contributed to the support of himself and wife, other than he thought 'somewhere around one hundred dollars a year,' and 'whenever I called on them [the two sons] I got money;' but he was unable to state when he had called on them, or how they had responded. The mother also fixes the amount at about $100 a year, but was unable to say when the deceased had contributed anything or how much except that she remembers once he gave her $20; about a year before his death he gave $7, and in July preceding his death (September 11th), he gave $5. This evidence does not, in our opinion, establish such a support or dependency as is contemplated by the...