Clark v. Northern P. Ry. Co.

• Decision Date: 16 July 1902
• Citation: 69 P. 636,29 Wash. 139
• Parties: CLARK v. NORTHERN PAC. RY. CO. [1]
• Court: Washington Supreme Court

69 P. 636

29 Wash. 139

CLARK v. NORTHERN PAC. RY. CO. ^[1]

Supreme Court of Washington

July 16, 1902

Appeal from superior court, Pierce county; Thad Huston, Judge.

Action by Mrs. Alberta Clark against the Northern Pacific Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Govnor Teats and E. W. Taylor, for appellant.

B. S Grosscup, Jas. F. McElroy, and A. G. Avery, for respondent.

HADLEY J.

Appellant instituted this action against respondent to recover damages on account of the death of her son, which, it is alleged, was caused by the wrongful and negligent act of respondent. At the trial the court granted a motion for nonsuit. The motion was based upon two grounds: First, that appellant had failed to show such title or right as enabled her to maintain the action; and, second, that no negligence of respondent was proven. We will first discuss the branch of the motion relating to appellant's right to maintain the action.

The accident which caused immediate death occurred August 6 1901. The deceased, Oscar Perry Dix, lacked a little more than one month of being 12 years of age. He was the son of Elihu Dix and the appellant, who were formerly husband and wife. Some time prior to June, 1897, the parents separated the appellant keeping the two children of the marriage,--the son above named and a daughter. On the 14th of June, 1897, appellant procured a decree of divorce from her said husband, and by the terms of the decree the care and custody of the daughter was awarded to appellant, and that of the son to the husband. After the separation, and before the divorce, the mother mainly supported both the children; the husband having contributed about $20 toward their support. After the divorce the father took the boy and kept him about two weeks, when he brought him back to his mother and told her he could not get along with him, and said if she would keep him he would support him. Soon afterwards the husband gave the mother $10 towards the support of the boy, and has never contributed any sum since. The mother, who afterwards remarried, continued to support the boy for a period of more than three years, and until the time of his death. The location of the father is unknown to her, and she has been unable to discover where he is. Under these circumstances, the respondent contends that appellant cannot maintain this action, for the reason that the father was charged with the lawful care and custody of the boy. Section 4829, 2 Ballinger's Ann. Codes & St., provides as follows: 'A faither, or in case of the death or desertion of his family the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.' It will be observed that by the terms of the statute the mother may maintain the action in the event the father has deserted the family. It is contended by respondent that by the divorce the family status was broken, and that there can be no longer a desertion of the family, within the meaning of the statute. The facts as stated, we think, show at least an abandonment of the boy by the father. He not only withheld from the boy his own companionship, but wholly neglected to contribute to his support. It was his primary duty to support his child, independently of that cast upon him by the decree of divorce. The boy being left with his mother, the duty of his support and education was cast upon her. As a natural son, he was, in legal contemplation, a part of his father's family. The family status between mother and child, as constituted by natural relationship, was not broken by the divorce, and their companionship as members of the same household continued, with only an interruption of two weeks. The family status as thus constituted was left by the father without any contribution on his part toward its support. This we believe was not only an abandonment of the child, but also of the family, within the meaning of the statute. By his abandonment the father has forfeited his right to maintain this action, and it belongs to the mother. The first ground stated in the motion for nonsuit should therefore have been denied. Whether the superior court intended to deny the motion on said ground does not appear from the record. It may have been the intention to grant the motion upon the other ground only. We will now consider the second ground of the motion for nonsuit,--that no negligence of respondent was proven. Deceased met his death by being struck by a freight train in the switch yards of respondent in the city of Tacoma. On the day of his death a circus show exhibited in Tacoma, and occupied with its tents grounds belonging to respondent, lying to the north of the system of tracks in the switch yards, and near the east end thereof. The space occupied by the tents and that immediately around them, together with a similar space to the east and west thereof, was unoccupied by tracks. This unoccupied space was to the north and parallel with the system of tracks. Persons being in the switch yards could approach the tents over this space without walking upon or among the tracks. Similar exhibitions had been given upon the same grounds before, and some persons in going thereto entered the switch yards toward the westerly end, and crossed over the tracks towards the show grounds. The yards are principally inclosed by a fence. Parallel with the fence on the south is a street, along which runs a street railway, which extends east almost as far as the switch yards extend. The traveled highway for reaching the show grounds was to go out said street by a street car or otherwise. Just beyond the terminus of the street car line the street is intersected by a county road running to the northeast around the easterly end of the switch yards, and which passes near the show grounds on the east. It appears that some persons sought to avoid this longer route over the traveled highway by entering the switch yards and crossing the tracks, thus approaching the tents from the west or southwest. In the center of the yards were 2 main tracks, and on the south of these was a lead track for the switches, and connecting with it were 19 switches leading diagonally therefrom. To the north of the main tracks were a number of others running practically parallel therewith. Over this system of tracks respondent daily moved many cars and locomotives. On the morning of the accident the deceased and two other boys about his age were on their way to the show grounds to see the preparations for the parade which was to precede the exhibition. They were hurrying to reach the grounds, and passed into the switch yard at the westerly end thereof. They were met by a switchman, who at first ordered them away, but, upon their urgent request and promise to be careful, he permitted them to pass him. They soon met another switchman, who told them to get out of the way and go around. He also told them not to go that way, as they might get killed. They, however, went aside upon some tracks upon the north side, that were not much used, and where the grass grew. The deceased boy was barefooted, and remarked to the other boys that the cinders hurt his feet. A freight engine with some cars moving easterly toward the show grounds came along on the aforesaid lead track to the south of where the boys were walking. The deceased ran across the intervening tracks and jumped upon one of the moving flat cars. One of the other boys told him not to do it. Just in the rear of the switch train, but upon the main track, came an outgoing freight train, going east. The deceased remained upon the flat car until it was about opposite the show grounds, when he jumped off; and while upon or in the act of crossing the main track toward the show grounds the before-mentioned freight train, being but a short distance away when he entered upon the track, struck him and killed him.

It is not contended by appellant that there was negligence in the operation of the train which caused the death, but she urges that respondent maintained a dangerous place, with danger inherent in the premises and in the operation thereof; that in the midst of this dangerous place respondent permitted the show to exhibit, and that the boys and children were attracted upon and over the premises thereby; that the people and children especially went through these premises upon the invitation and inducement held out by respondent in permitting the show to be held upon its premises; that...