Collier v. Great Northern Ry. Co.

• Decision Date: 11 December 1905
• Citation: 82 P. 935,40 Wash. 639
• Court: Washington Supreme Court
• Parties: COLLIER v. GREAT NORTHERN RY. CO. et al.

82 P. 935

40 Wash. 639

COLLIER v. GREAT NORTHERN RY. CO. et al.

Supreme Court of Washington

December 11, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Andrew Jackson Collier against the Great Northern Railway Company and another. From a judgment in favor of defendants plaintiff appeals. Affirmed.

S. H. Steelse, for appellant.

L. C Gilman, for respondents.

RUDKIN J.

Railroad avenue, between Yesler Way and Washington street, in the city of Seattle, is one of the public thoroughfares of said city but is largely used for railroad purposes. The Northern Pacific Railway Company and the Great Northern Railway Company own, operate, and control several tracks along said avenue between the above points. The tracks owned by each company are under its exclusive dominion and control, and are only used by the other company in the manner and for the purpose hereinafter stated. Whenever it becomes necessary to transfer freight cars from the tracks of one company to the tracks of the other, such transfer is made by means of a switch which connects the tracks of the two companies. Such transfer is sometimes made by the employés of one company and sometimes by the employés of the other. Except for the purpose of effecting such transfer, neither company uses, or has any control over, the tracks of the other. On the 7th day of August, 1903, the plaintiff was driving his horse and wagon diagonally across said Railroad avenue, and as he crossed one of the tracks of the Northern Pacific Railway Company the wheel of his wagon dropped into a hole in said track, from 2 to 8 inches wide, 12 inches long, and 10 inches deep, resulting from a failure to block and securely guard the rail on said track, and became fast. While the plaintiff was endeavoring to release his wagon, a locomotive owned by the defendant Great Northern Railway Company, operated by the defendant Monohan, and engaged in transferring freight cars as above set forth, ran into the plaintiff, destroyed his wagon and harness, and injured the plaintiff himself. This action was brought to recover damages for the injury to the plaintiff and his property. Two grounds of negligence are alleged in the complaint: First, the unsafe and defective condition of the track where the injury occurred; and, second, negligence in the operation of the locomotive that caused the injury. The cause was tried before a jury, resulting in a general verdict for the defendants, accompanied by the following special finding: 'Q. Did the defendant the Great Northern Railway Company own or control, or was it under any contract or agreement to construct, maintain, or repair, the track on which the accident which is the subject of this action occurred? A. No.' Judgment was entered on the verdict in favor of the defendants, and the plaintiff appeals.

The verdict of the jury eliminates the second ground of negligence charged, viz., negligence in the operation of the locomotive which caused the injury, and no error is assigned on that branch of the case.

At the request of respondents, the court instructed the jury as follows: 'One of the grounds of negligence alleged in the complaint is that the track on which the accident occurred was so constructed as to be in a dangerous condition, and not admit of the ready and free passage of vehicles across the same. Upon this question I charge you that if you shall find from the evidence in this case that the track in question was not the property of the defendant company, and that it had no control over the same, and was under no agreement to construct, maintain, or repair it, and was allowed to use it only as a mere matter of convenience for the transfer of cars from tracks of its own system to those of another system, then the defendant company would be under no duty or obligation to the public to see that said tracks were properly constructed or kept in proper repair or properly maintained. The defendant company would be under no obligation to the public, or otherwise, to repair tracks belonging to another company and of which it had no control and concerning which it had made no agreement in reference to construction, maintenance, or repair, and, if you shall find from the evidence in this case that the track in question was not owned by or in some way controlled by defendant company, and that it was under no agreement to construct, maintain, or repair it, and that the defendants properly and with due care operated the train which came in collision with the plaintiff's vehicle, then your verdict must be for the defendants.' The principle question discussed on this appeal arises out of the giving of the above instruction and the refusal of the court to give other instructions, the substance of which is contained in the following: 'If you find from the evidence that at the time of the injury the defendant Great Northern Railway Company was operating its trains on the tracks where the plaintiff was injured, on Railroad avenue, then and in that case it would be the duty of the defendant Great Northern Railway Company to use reasonable effort to keep said track in repair and in reasonably safe condition for public travel thereon.' In cases such as this the liability of a railway company depends upon its control over the agency causing the injury, or the duty it owes to the injuried party. It owes one duty to a passenger, another to an employé, and still another to a stranger. Counsel for appellant cites and relies on the case of Herrman v. Great Northern Ry. Co., 27 Wash. 472, 68 P. 82, 57 L. R. A. 390. In that case the plaintiff was injured on a sidewalk on the line of the defendant's road in front of the depot where its trains arrived and departed, and where tickets were sold to intending passengers. The plaintiff went to this depot on business with the company, and with a view of becoming a passenger on one of its trains. Under these facts this court held that it was the duty of the defendant company to keep the premises to which it invited its passengers to come to purchase tickets and take passage on its trains, as well as the approaches...