Cogswell v. West Street & N.E. Elec. Ry. Co.

• Citation: 31 P. 411,5 Wash. 46
• Court: United States State Supreme Court of Washington
• Decision Date: 11 October 1892
• Parties: COGSWELL v. WEST ST. & N.E. ELECTRIC RY. CO.

31 P. 411

5 Wash. 46

COGSWELL v. WEST ST. & N.E. ELECTRIC RY. CO.

Supreme Court of Washington

October 11, 1892

Appeal from superior court, King county; R. OSBORN, Judge.

Action by John B. Cogswell against the West Street & North End Electric Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Judgment reduced.

Dunbar J., dissenting.

Burke, Shepard & Woods, for appellant.

Jas. B. Howe and J. W. Corson for respondent.

STILES, J.

In this cause due notice was given of the time and place of settling the statement of facts, but, upon the day fixed, the appellant, through what the court below deemed an excusable inadvertence, failed to call the matter to the attention of the court. Four days later, after notice to the respondent the court entertained a motion to enter a nunc pro tunc order as of the date fixed for the settlement adjourning the proceeding. The respondent appeared specially for the purpose of objecting that the court had lost jurisdiction of the matter, which objection the court overruled, and certified the statement. While we think the fact that a nunc pro tunc order was made could have no effect to assist the appellant, unless in fact an order was made at the date set for settling the statement of facts the entry of which had been omitted, still in this cause it cannot deprive it of its right to be heard. The proposed statement of facts was a stenographer's report of the trial, to which respondent proposed no amendments whatever. Neither party in such a case was required to attend before the court, unless the court itself had seen fit to make some change in the proposed statement; therefore, the fact that either the clerk or party inadvertently failed to call the statement to the court's attention on the particular day could have no effect upon the power of the court or the judge to certify the statement. To all intents and purposes, it was a submission of the cause upon an agreed statement of facts.

The first error complained of in this case is that the court below, by its rulings upon the admission of testimony and its charge to the jury, deprived the appellant of its defense that the car upon which the respondent was injured was not being operated by it, but by a construction company with which it had a contract for electrical equipment of its railroad. It is a well-established principle of the law governing common carriers, which obtain certain rights or franchises from the public by either special or general legislation on the part of the state or municipal corporations, and upon whom in return therefor are cast the burden of certain duties, that they cannot, by means of any lease or other contract for the operation of their means of transportation, or the management and control of their tracks and right of way, relieve themselves from liability for violations of contracts or the public law, or for torts committed by their lessees or the parties with whom they specially contract. At the same time it is an equally well-understood rule that a corporation or a private person standing in such a relation to the public is not liable for wrongs done by an independent contractor who undertakes the construction of the works necessary and proper to the operation of the proposed improvement. In this case the answer admitted that the appellant was the owner of a railroad known as the "West Street & North End Electric Railway," in the city of Seattle, together with the roadbed, track, cars, and other appurtenances thereunto belonging, but it denied that it was a common carrier for passengers thereupon for hire, and pleaded affirmatively that at the date of the alleged injury it had a contract with an electrical construction company, under which the latter was to equip the road with electrical appliances, engines, cars, and other necessary machinery, and that under that contract the construction company had contracted to operate the road satisfactorily for at least 10 days before it could require payment for the equipment. It also claimed that the car in question and the road was then being operated by the construction company, and that it had not yet transferred or delivered the line of railway, completed and equipped according to the contract, to the appellant. Had this been a car which was being run backward and forward over the line by the construction company, carrying material, or for any other purpose in connection with the equipment of the line, or for the purpose of testing its working condition, the contention of the appellant might have been sustained, but the car in question was a passenger car, which was being operated for profit between Seattle and the town of Ballard. It was run upon a time table, and was manned by the usual conductor and motorman. The public were invited to take passage thereon upon payment of the usual street-car fare, and in fact at the time of the accident it was carrying a load of upwards of 80 passengers. Out of a great number of cases which were cited to our attention by both sides, we find but two which are directly pertinent upon this point. The first is Cunningham v. Railroad Co., 51 Tex. 503. In that case a passenger was carried by a construction train operated by independent contractors for the building of the road, without the knowledge of the railroad company, and against its express prohibition, and it was held that the railroad company was not liable. The other case is that of Lakin v. Railroad Co., 13 Or. 436, 11 P. 68, which is a case on all fours with this one, with the exception that there the railroad was an ordinary steam railroad. The court said: "The defendant may contract for the construction of its road, but it cannot escape liability for injuries to passengers, caused by the negligence of another, which it permits or allows to use its road for the purposes of traffic. In such case, as regards the public, those who operate the road must be regarded as the agents of the corporation. This doctrine is in accordance with sound public policy; for it would certainly be against the public interest to allow a corporation invested by the state with important franchises and privileges, and incorporated to discharge a public duty as well as to subserve a private benefit, to shirk its responsibilities, or shift its duties and liabilities to other, perhaps, irresponsible parties. Except as authorized by statute, it cannot relieve itself from responsibility for the exercise of its corporate powers and franchises." The two cases referred to, it seems to us, express the correct principle applicable in such instances, and under that principle there was no error on the part of the court as to the point in discussion.

2. Appellant claimed a failure of the plaintiff's case because he did not prove that he had paid his fare. His proof was to the effect that he could not remember whether he had paid his fare or not, but he believed that he did not, because the conductor did not call upon him for it; but he testified that he got upon the car for the purpose of becoming a passenger, and that he was willing to pay, and would have paid but for the failure of the conductor to come where he was, and the crowded condition of the car, which compelled him to stand upon the footboard on the outside. We think he was a passenger.

3. The next point is that the learned judge of the court below did not define to the jury the terms "diligence," "negligence," "extraordinary care," etc., which were frequently used throughout the instruction; the answer to which is that, although the appellant requested a number of instructions, all of which were given with the exception of one, either as requested or in a modified form, none of them called the attention of the court to the alleged omission, or asked a definition of the terms used, and error cannot now be predicated on its omission.

4. Running through the charge as given, the court instructed the jury, in substance, that the appellant, as a common carrier of passengers, was liable to the respondent if the injury done to him could have been avoided by extraordinary care and vigilance on the part of the appellant, its agents and employes. Substantially, the instructions on this point were the same as those usually given in cases of injuries upon steam railroads. It has long been the rule that when carriers undertake to convey persons by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and dilligence. Railroad Co. v. Derby, 14 How. 486; Steamboat v. King, 16 How. 469; Pennsylvania Co. v. Roy, 102 U.S. 451. But the appellant maintains that it should not be placed within the category of steam-railroad cases, but should be held only to the lesser degree of care required of horse-railroad companies. It was said in Unger v. Railroad Co., 51 N.Y. 497, that the same decree of care and skill was not required of carriers of passengers by stage coaches as was required of steam-railroad companies, and that for the same reason it was not required of carriers of passengers upon street cars drawn by horses. Probably the correct rule in all such cases, whether the method of transportation be steam, electricity, compressed air, horses, or any other power, is as well stated in that case as anywhere, viz., that the degree of care required in any case must have reference to the subject-matter, and must be such as a man of ordinary prudence and capacity may be expected to exercise in the same circumstances. In some cases this rule will require the highest degree of care, and in others much less. There were four questions of fact involved in this case: (1) Did the appellant deposit the plank on the track in the position where it struck the respondent? (2)...