City of Seattle v. Northern P. Ry. Co.

• Decision Date: 14 November 1907
• Citation: 92 P. 411,47 Wash. 552
• Parties: CITY OF SEATTLE v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

92 P. 411

47 Wash. 552

CITY OF SEATTLE v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

November 14, 1907

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by the city of Seattle against the Northern Pacific Railway Company and another. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Carroll B. Graves, for appellant Northern P. Ry Co.

Samuel H. Piles, James B. Howe, and Charles H. Farrell, for appellant Columbia & Puget Sound R. Co.

Scott Calhoun and Elmer E. Todd, for respondent.

ROOT J.

This is an action by the respondent against appellants for an alleged breach of conditions contained in certain franchise ordinances, wherein appellants agreed to keep certain portions of Railroad avenue in the city of Seattle planked and in repair, and to save the city harmless from the payment of any and all damages growing out of, or in any way connected with, the rights, privileges, or franchises granted by said ordinances. The facts out of which the litigation arose are about these: In September, 1900, one Edwin Eskildsen, a boy four years of age, while walking along Railroad avenue, caught his foot in a small hole in the planking near one of the Northern Pacific Railway Company's tracks, and his leg was run over and cut off by a passing train. Through his guardian he instituted an action in the Circuit Court of the United States for the District of Washington against the Northern Pacific Railway Company to recover damages for the injury mentioned. The cause came on for trial before the court and a jury, and a verdict was returned in favor of the defendant, and on March 4, 1901, a judgment was entered upon such verdict. No appeal was prosecuted therefrom, and the judgment became final. Thereafter, in March, 1901, said minor, through the same guardian, began an action in the superior court of King county, Wash., against the city of Seattle, to recover damages arising from the identical accident and injury charged in the other action, and alleging the said injury to have occurred in a public street through the negligence of said city. A verdict was returned against the city, and thereupon judgment was entered in favor of said minor on September 28, 1901. From this judgment an appeal was taken to the Supreme Court of the state, which on October 13, 1902, affirmed said judgment. The present action was commenced on October 10, 1905. The respondent the Northern Pacific Railway Company made in answer, denying that the accident to Eskildsen occurred in a public street, but alleged that it occurred upon the grounds owned and occupied by the railway company. It also pleaded the statute of limitations, and that, if liable at all for the accident, it was as a joint tort-feasor with the city and consequently not liable over to it. It further sets forth as an affirmative defense the suit against it and the judgment in its favor in the United States Circuit Court; that, when it was called upon by the city to defend the action of Eskildsen against the city, it declined to do so, but informed the city of the action by Eskildsen against it in the federal court, and asked the city to plead and interpose the same as a defense, and offered to furnish the evidence to establish such defense. To this last-mentioned affirmative defense the city interposed a demurrer which was by the trial court sustained, and this action is assigned as error.

The appellant the Columbia & Puget Sound Railroad Company answered the complaint of respondent, denying most of the material allegations, and denying that it was called upon at the time of the former trial to defend the action of Eskildsen against the city, although admitting that it had knowledge of the pendency of said action. It also pleaded the statute of limitations. Upon the trial of the case the court refused to permit appellants to introduce any evidence to show that the accident did not occur in a public street; and this is assigned as error. The cause was tried before a judge without a jury, findings and conclusions made and filed in favor of respondent, and a judgment entered thereupon for...