Cross v. Spokane, P. & S. Ry. Co.

• Decision Date: 08 September 1930
• Docket Number: 22261.
• Citation: 158 Wash. 428,291 P. 336
• Court: Washington Supreme Court
• Parties: CROSS v. SPOKANE, P. & S. RY. CO.

291 P. 336

158 Wash. 428

CROSS v. SPOKANE, P. & S. RY. CO.

No. 22261.

Supreme Court of Washington

September 8, 1930

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Celia Cross, administratrix of the estate of Frank W Cross, deceased, against the Spokane, Portland & Seattle Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cannon McKevitt & Fraser, of Spokane, and Carey & Kerr, of Portland Or., for appellant.

Don. F. Kizer and Joseph J. Lavin, both of Spokane, for respondent.

FULLERTON J.

This action was brought by the respondent, Celia Cross, as administratrix of the estate of her deceased husband, Frank W. Cross, against the appellant, Spokane, Portland & Seattle Railway Company, to recover in damages for the death of her husband, which she alleges was caused by the negligent acts of the appellant. There was a trial by jury in which a verdict was returned in favor of the respondent for the sum of $8,000. A judgment was entered on the verdict, and, from the judgment, the railway company prosecutes this appeal.

In the main, the facts are not in dispute. The appellant is a common carrier engaged in operating a railroad between the city of Portland, in the state of Oregon, and the city of Spokane, in the state of Washington. Its business is interstate, and it is subject to the rules applicable to common carriers of interstate commerce. Its roadbed, as it nears the city of Spokane, extends through a series of rock cuts. The width of the cuts is some twenty-eight feet, and the railroad track is laid in the center of the cuts, elevated somewhat from the bottom. The course of the road through the cuts is tortuous. The walls of the cuts are somewhat perpendicular, and average twenty or more feet in height, preventing the operators of trains through them from having a vision of the roadbed in certain places for any considerable distance in front of the train.

The respondent's husband was, at the time of his death, an employee of the appellant railway company. He was employed as a track inspector, and his duties required him to patrol a part of the appellant's road some two and a quarter miles in length, a part of the way extending through certain of the rock cuts before mentioned. His hours of work were from 7 o'clock in the evening until 6 o'clock in the morning, and he seems to have been expected to pass over the track at least once after the passage of every train. He had been employed by the appellant for a perior of some three years. His duties were at first that of a section hand, and he was promoted to that of track inspector because of his prudence and reliability. He was killed at about 5:30 o'clock in the morning, while on the way to the terminal point of his beat at which his labors ceased.

At the time of his death, Cross was riding a vehicle, sometimes called in the record a speeder and sometimes a velocipede. It was a three-wheeled vehicle, operated by foot and hand power. It was run over the railway tracks, and was so constructed as to enable its operator to remove it from the tracks almost instantly. He was run down by a freight train traveling over the track in the same direction in which he was traveling. The accident occurred in a cut where there was such a curvature as to prevent the operators of the train from seeing him until the train was almost upon him. The testimony as to the subsequent happenings is that of the engineer and fireman of the train. Their testimony is that, as soon as the deceased came within their vision, an alarm whistle was sounded, and an effort made to stop the train by throwing off the power of the engine and 'dynamiting' the train; the quoted term being explained to mean in railroad parlance as using the means provided for making emergency stops. Their testimony also tends to show that the deceased became confused when he discovered his situation; that when the whistle was sounded he looked back and continued for a time on his course, making no effort either to throw the speeder or himself from the track until the train was almost directly upon him.

The work in which the deceased was engaged is regarded by railroad men as being hazardous in all situations, and extremely so in cuts where there is a curvature in the track. For this reason track inspectors are rarely permitted to use speeders on any part of the track while in the performance of their work, and never so in a place, of which the place here described is typical, where the use of a speeder would unduly increase the hazard. The possession of the speeder by the deceased at the time he was killed is explained by the fact that he lived some five miles east of the easterly terminal point of his place of work, and asked and obtained leave to use the speeder in riding to and from his place of work and his home. At the time he was granted this permission, his attention was called to the extremely hazardous place in which he was working, to the rule of the company forbidding the use of speeders in such places, and was directed not to use it while in the performance of his work.

At the entrance of a cut immediately preceding the cut in which the deceased was killed was a signal post with a signboard containing the word 'Slow.' This was explained to mean that trains operated over the road must be limited in speed by their operators to that prescribed from time to time by instructions from the operating department of the road. The instructions in force at the time of the accident and at the place of the accident limited the speed of passenger trains through the cuts to forty miles per hour and the speed of freight trains to twenty-five miles per hour. There was also at a place several hundred feet back of the entrance to the cut in which the accident occurred a signal post requiring the engineer of a train to sound the engine whistle when reaching it. There is also a general rule of the company requiring the whistle to be sounded at all 'obscure places.'

There is both direct and circumstantial evidence that the deceased fully understood the hazardous nature of his work. He was informed of it by his immediate superior at the time of his employment as a track inspector; he had been working in that vicinity as a section hand for a year and a half prior to the time of such employment, and was familiar with the situation; and especially did he know the dangers of using a speeder through the cuts. Between his home and the beginning point of his place of work, the track was for the greater part in the open. There was, however, a considerable cut at a place in the road which he must pass through just prior to reaching his place of work, and there was a telegraph station at a place he must pass before reaching the cut. It was his habit to stop and inquire of the operator of the station whether there were any trains in its immediate vicinity. The operator's testimony on this point is that he never inquired for the line-up of trains generally; that he simply wanted to know whether there was a train coming which he was likely to meet in passing through the cut between the station and his place of work, saying that he never took the speeder beyond that point.

The evidence relating to the circumstances occurring immediately prior to the time Cross met his death is conflicting, but we must accept that version of it as true which tends to support the verdict of the jury. The train which ran over and killed Cross, as we have said, was a freight train, and its speed was limited at the place of the accident to twenty-five miles an hour. The evidence was that its speed at the place was between '30 and 40 miles per hour.' There was evidence that the whistle of the engine was not sounded as it passed the whistling signal immediately prior to the entrance of the train into the cut in which the accident occurred, and evidence that it was not sounded at the entrance of the cut, which would seem to fall within the definition of an obscure place. There was evidence also that Cross frequently rode the speeder over that part of the track on which he was killed. Whether his immediate superiors had knowledge of the fact is not so clear. They deny having such knowledge, and evidence to refute their testimony is the inference arising from the testimony that Cross was frequently seen using the speeder while in the performance of his work.

The evidence is clear that track inspectors are instructed and expected to depend upon their own vigilance and care for their own safety. The company has such inspectors on every part of its road. The inspectors can have no regular times for passing over their respective beats, and the company is for that reason powerless to protect them. The most it can do is to direct that passing trains signal at appropriate places, and it has a general rule to this effect.

The action of the respondent was begun and prosecuted under the Federal Employers' Liability Act (35 Stat. at Large, 65 [45 USCA §§ 51-59]). The terms of the act are so well understood as to require no more than a mere outline of them here. By the first section of the act, it is provided that every common carrier by railroad, while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce or, in case of the death of such employee, to his personal representatives, for any injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carriers. By the third section of the act, contributory negligence on the part of the employee is not a bar to such an action, but the damages shall be diminished by the trier of the facts in proportion to the amount...