Cook v. Stimson Mill Co.

• Decision Date: 05 January 1906
• Citation: 83 P. 419,41 Wash. 314
• Court: Washington Supreme Court
• Parties: COOK v. STIMSON MILL CO.

83 P. 419

41 Wash. 314

COOK v. STIMSON MILL CO.

Supreme Court of Washington

January 5, 1906

Appeal from Superior Court, Snohomish County; George A. Joiner Judge.

Action by Charles Cook, as guardian of Joseph Cook, a minor, against the Stimson Mill Company. From a judgment for plaintiff defendant appeals. Reversed.

See 78 P. 39.

Graves Palmer, Brown & Murphy and Robert A. Hulbert, for appellant.

Cooley & Horan, for respondent.

RUDKIN J.

This is an action to recover damages for personal injuries suffered by Joseph Cook, a minor, while riding on one of the defendant's logging trains. The case was before this court on a former appeal, and will be found reported in 36 Wash. 36, 78 P. 39. We deem it sufficient to say, in addition to the statement of the case contained in the former opinion that one of the grounds of negligence charged was that the train was running at an unusually high and dangerous rate of speed at the time of the accident, to wit, at the rate of 40 miles per hour. The plaintiff had judgment below, and the defendant appeals.

At the time of the accident which caused the injury complained of a logging train operated by the appellant, consisting of an engine, tender, and eight cars loaded with logs, was approaching one of its camps. As the train rounded a curve, the fireman, who occupied a position on the engine toward the inside of the curve, discovered some cattle on the track about 100 feet ahead of the train. He immediately sounded the whistle, and, by the time the engineer could see the cattle from his position on the engine toward the outside of the curve, the train was within about a rail's length of them. Believing lieving that he could not stop the train before striking the cattle, and that any attempt on his part to do so would result in piling the logs from the cars on top of the engine, the engineer threw open the throttle in order to strike the cattle as hard as possible, deeming this the safest and best course under the circumstances. When, or soon after, the train struck the cattle, the forward trucks of the engine, the trucks of two of the cars, and one of the trucks of a third car left the rails. The engineer kept the engine moving ahead as best he could, to prevent the logs from piling on top of the engine. After the train had proceeded from 500 to 700 feet from where it struck the cattle it stopped, and the logs forced the tender up against the engine and crushed the respondent's foot or leg, causing the injury which constitutes the subject-matter of this controversy.

One of the controverted questions at the trial was the rate of speed at which the train was moving at the time the cattle were discovered on the track; the appellant claiming that the train was running from 12 to 15 miles an hour, the respondent claiming that the rate of speed was much higher. To prove the rate of speed, the respondent called two witnesses, neither of whom was present or saw the accident. The witness Friermood was in the employ of the appellant for about eight months in all. How long prior to the accident does not appear. His experience in railroading is shown by the following answer to a question propounded to him: 'I was working in the shops for a while, I fired engine a while, and I was braking a while.' Between the time of the accident and the second trial of this case the witness was in the employ of the Northern Pacific Railroad Company for a period of about 2 1/2 years in the capacity of brakeman. The following are some of the questions propounded to this witness on his direct examination, together with the objections thereto, the court's rulings, and the answers given: 'Q. What was the condition that you found there of the logs upon the first set of trucks back of the engine? A. When I got down there, I found they had shifted forward and shoved the tank into the cab, and some of them were as far as the front of the engine. Q. How do you mean? A. Shoved by the tank. Q. Pushed right by? A. Right by the tank, and as far as the front of the engine. Q. What would that indicate, if anything, as to the speed at which the train was going previous to the time when it was stopped, or at the time when the cattle were struck? (Mr. Graves: Objected to upon the ground that the witness has not shown himself competent to answer such a hypothetical question or give an opinion upon those facts. Overruled. Defendant excepts.) A. It looks to me like the speed would be rather swift down there; engine started suddenly and the logs shifted that way. Q. From the conditions that you found existing there at the time when you went down to the wreck, the distance which the train had apparently run after striking the cattle, and the general condition in which you found it, could you form any opinion as to the rate of speed at which that train was running when it jumped the track? A. Well, I should think that---- (Mr. Graves: Just answer 'Yes' or 'No.') Q. Yes; as to whether you can give an opinion. A. Yes, sir; I can give an opinion. Q. What, in your opinion, was the speed at which that train was running at the time when the cattle were struck? (Mr. Graves: We object to that, may it please your honor, that the witness has not shown that he is in any manner qualified to give an opinion upon such a state of fact, and that his opinion would be entirely valueless as to what the rate of speed might have been. Overruled. Defendant excepts.) A. In my opinion, the speed was about 30 miles an hour. Q. Now, in your opinion, was that a safe rate of speed to maintain in coming down that grade? A. No, sir. Q. Would the engineer have his engine under control going at that rate of speed? A. No, sir; not with a logging train. (Mr. Graves: We move to strike out this last answer and question the witness answered, upon the same ground as our objection to the questions above, that the witness is not competent to express an opinion, and the further reason that there is no one would be competent to express an opinion from such facts as this witness saw. The Court: Motion denied. Defendant excepts.)' The experience of the witness Davis was about the same as that of the former, excepting that he was a fireman, instead of a brakeman. His testimony with the objections thereto was as follows: 'Q. What, in your judgment, was the rate of speed at which that train was running when it jumped the track? (Objected to upon the ground that the witness is not competent, and there are no facts in the case or stated in the question that would enable a witness to form an opinion that would be of any value as evidence in this case. Overruled. Defendant excepts.) A. I should think 30 or 35 miles on hour.'

It seems to us that the foregoing testimony was incompetent and should have been excluded. It either requires no expert knowledge to enable one to draw an inference as to the rate of speed of a train from the conditions surrounding a wreck caused by it, or the witnesses in this case were not shown to possess such expert knowledge. In the former case any inference to be drawn was for the jury alone and the testimony would be incompetent. In the latter case the witnesses themselves were...