Brown v. Northern P. Ry. Co.

• Decision Date: 22 September 1906
• Citation: 44 Wash. 1,86 P. 1053
• Parties: BROWN v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

86 P. 1053

44 Wash. 1

BROWN v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

September 22, 1906

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Mary E. Brown, in her own behalf, and as guardian ad litem of Bessie Brown and others, against the Northern Pacific Railway Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Barnes & Latimer, for appellant.

Edward J. Cannon, for respondents.

HADLEY, J.

This is an action to recover damages for the death of William A Brown. The suit was brought by Mary E. Brown, the surviving wife of the deceased, in her own behalf, and also as guardian ad litem in behalf of the minor children of herself and deceased. The Northern Pacific Railway Company, Edward Bosworth, and Alex. Walker were made parties defendant. Brown met his death in a railway collision on the Northern Pacific Line, and Bosworth and Walker were respectively the conductor and engineer of the train with which Brown's train collided. The complaint charges negligence against all of the defendants. The answers put in issue the essential allegations of the complaint, and interposed the defense of contributory negligence. At the trial certain amendments to the answers were permitted, which need not be explained at this time. The cause came on for trial before a jury and at the close of the testimony submitted by the plaintiff, the defendants challenged the sufficiency of the evidence to sustain a verdict for the plaintiff, and moved that the cause be withdrawn from the jury, and judgment entered in favor of the defendants. The motions were granted on the ground that the evidence conclusively showed contributory negligence on the part of the deceased. Judgment was accordingly entered and the plaintiff has appealed.

The principal question involved is that of contributory negligence, and it is assigned that the court erred in sustaining the challenge to appellant's evidence and in taking the case from the jury. The evidence discloses the following facts: At the time of the accident the deceased was the head engineer in charge of an extra freight train, known as 'No. Extra 68.' The train was being drawn by a small standard engine in charge of the deceased, and also by a large consolidated engine immediately behind the small one which was in charge of another engineer. The deceased had charge of the air, and was in sole control of the train. This train had proceeded from Hope, Idaho, to Trout Creek, Mont where the accident occurred. At Hope the doceased's train was passed by regular freight train No. 54, which was going in the same direction, and which proceeded to Trout Creek under orders, where it arrived at 2 a. m. At Trout Creek the crew of No. 54 were under orders to make more track room in the yeards, by moving cars from one track to another, and they were so engaged when the collision occurred. Some 10 or 15 minutes after No. 54 left Hope, the deceased's train followed it to Trout Creek, and it was while this train was running through the yards at the latter place at 2:30 a. m. that the accident occurred. The engine of No. 54 was, at the time, engaged in drawing cars from a side track out upon the main line preparatory to replacing them upon side tracks so as to make more yard room. The head of the engine was toward the cars that were moving, and the engine was drawing the cars after it as it moved backward with its rear or tender toward the west, from which direction the deceased's train came. As the latter train approached from the west its head engine, in charge of the deceased struck the tender of the engine engaged in switching, and as a result of the collision the deceased lost his life. Trout Creek was a terminal on the railway line, so called, because it was the end of a division of the road, and extensive yards and side tracks were there provided for terminal purposes. The deceased had been on this run for some time, and was therefore aware that the train was approaching and running through terminal yards. As an engineer, he was required to be conversant with the rules of the railway under which all engineers and train men operated. One of these rules provides that all trains must approach and pass through yards under full control. According to the testimony of plaintiff's witnesses, 'under full control' means that the train must be regulated at such speed as will enable the engineer to stop it within his vision, no matter how short a space that may be. One witness expressed the meaning of the rule as follows: 'If I can stop in going 20 miles an hour in plenty of time, or be able to stop in 10 feet if I had to.' It was also testified that the engineers of extra trains are at any time of day or night charged with knowledge that there is liable to be an obstruction upon the main line within terminal yards, and that when an engineer is approaching any place where he thinks, or has reason to know, that there may be an obstruction on the main line, it is his duty to arrange his speed in accordance with the distance of his vision. Fairly stated the evidence shows the speed of deceased's train at the time of the accident to have been at least 8 miles an hour, and the distance of unobstructed view before reaching the scene of the accident about 700 feet. The time was 2:30 a. m. on the 13th of June, and the location was an elevated one in the mountains. Day was beginning to break, and although it was not yet fully light there was some day light. There was some testimony that the train on its way had passed through banks of fog, but it does not appear that there was more than a very slight fog in the yards at the time. The location was a mile from the river along which the fogs usually hung, and it was also some distance from the hills around. Witnesses testified that they saw no lights upon the rear of the engine which was struck by the engine in charge of the deceased. The evidence upon that subject was merely negative in its character, as no witness testified positively that there were no such lights. Their observation in that regard was after the collision which had disarranged the entire rear part of the engine. The collision was of such force that it practically destroyed the engine on which the deceased was riding. ...