Cully v. Northern P. Ry. Co.

Decision Date23 June 1904
Citation35 Wash. 241,77 P. 202
PartiesCULLY v. NORTHERN PAC. RY. CO. et al.
CourtWashington Supreme Court

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by Alvin Lewis Cully, by Charles Cully, guardian ad litem against the Northern Pacific Railway Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Gable &amp Seabury and Million & Houser, for appellant.

Jas. F. McElroy, B. S. Grosscup, and Wilbra Coleman, for respondents.

PER CURIAM.

This is an action brought in the superior court of Skagit county by Alvin Lewis Cully, by Charles Cully, his guardian ad litem plaintiff, against the Northern Pacific Railway Company and T. B. McDermott, defendants, to recover compensation for personal injuries sustained by said plaintiff. From a judgment of nonsuit and dismissal entered against him in the lower court, plaintiff appeals.

Appellant alleges in his complaint that on or about August 5, 1901, he sustained serious injuries through the negligence of respondents in failing to provide him a safe place in which to work. The following facts are amply borne out by the record: On or about the 29th day of July, 1901, respondent Northern Pacific Railway Company was engaged in taking gravel from a gravel bank near the town of Sedro-Woolley, in Skagit county. The crew of men engaged in the work of excavating the gravel and loading it on the cars was under the direction and control of respondent T. B. McDermott as foreman of the crew. On or about the day last mentioned, appellant, being at that time between 17 and 18 years of age, although doing a man's work and drawing a man's pay, was employed by said McDermott to assist the crew in the work in hand, the particular duties assigned him being to assist those of the crew whose duty it was to attend the jackscrews on the steam shovel and take up and relay the track upon which the steam shovel was operated, as the necessity of the work from time to time required its position to be changed. In the process of removing gravel from the bank and loading it on the cars a steam shovel was used. Respondents had been engaged for some time in taking gravel from the bank in question prior to the employment of appellant, and in the process of so doing had cut into the face of the bank to a considerable extent, necessitating the building of the track on which the steam shovel was being operated and the side track used for the gravel cars within the cut. The excavation had advanced into the bank to such an extent that the height of the embankment caused by the excavation was between 30 and 40 feet on the day of the accident. Either early on the same day or the day before, a stratum of blue clay had been struck which undoubtedly added to the danger of a slide taking place. On the afternoon of the 5th day of August, 1901 appellant was assisting another workman by the name of Hale Rhodes in laying and spiking down track in the near of the steam shovel preparatory to moving the shovel to another position. Rhodes was engaged in spiking and appellant was holding or 'pinching' the rails in position to be spiked by the use of a 'claw' or 'pinch' bar, respondent McDermott standing by. The bar which appellant was using was not working satisfactorily, and some one--it does not clearly appear who--suggested, 'Get a line bar,' whereupon McDermott, by pointing, directed attention to a bar lying a short distance away between the steam shovel and a car standing opposite on a parallel track. Appellant immediately proceeded down between the steam shovel and the standing car to get the bar pointed to, and was in the act of picking it up, when a large mass of the bank broke away from the top, and, before appellant had time to change his position, came down with great violence, striking the steam shovel with such force as to carry it off the track, carrying it over against the opposite car, and pinning appellant between the steam box of the steam shovel and the deck of the car, resulting in the injury. The separate answers of respondents put in issue the material allegations of the complaint, and further alleged, as separate defenses to the action, assumed risk, contributory negligence, and negligence of fellow servants. The affirmative matter in each answer was denied in the reply.

Prior to the trial, appellant, pursuant to section 6009, 2 Ballinger's Ann. Codes & St., propounded to respondent company certain written interrogatories, to all of which the respondent made answer, except interrogatories numbered 19 and 20, which are as follows: 'No. 19. If such report was ever made, who made it, and to whom was it made, and what action, if any, was ever taken by the company with reference thereto? No. 20. Attach to your answers herein all reports regarding the accident, and all correspondence with the person or persons reporting said accident with reference thereto.' On motion of counsel for the railway company these two interrogatories were stricken out by the lower court, on the ground that the same were incompetent, irrelevant, and immaterial, to which ruling appellant excepted. It appears from the transcript that the respondent company answered in the affirmative interrogatory No. 18, that a report of appellant's said injury was made to the company. We are clearly of the opinion that these interrogatories were properly stricken. It seems to us that it would be a very dangerous and unjust practice to require the defendant in this character of cases to produce all of the correspondence, reports, and documents which he may have...

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30 cases
  • Holm v. Superior Court
    • United States
    • California Supreme Court
    • March 12, 1954
    ...of the cases it was emphasized that the crucial question is the purpose for which the communication originated. In Cully v. Northern Pac. R. Co., 35 Wash. 241, 77 P. 202, 203, the court held that routine correspondence, reports and documents relating to the accidental injury of the plaintif......
  • Winneshiek County State Bank v. District Court of Allamakee County
    • United States
    • Iowa Supreme Court
    • February 15, 1927
    ... ... B. & M. C. C ... & [203 Iowa 1286] S. M. Co. v. District Court , ... 27 Mont. 441 (71 P. 602, 94 Am. St. 831); also in Cully ... v. Northern Pac. R. Co. , 35 Wash. 241 (77 P. 202), cited ... in the Davis case. In Evans v. Seaboard Air Line ... R. Co. , 167 N.C. 415 ... ...
  • Heidebrink v. Moriwaki
    • United States
    • Washington Supreme Court
    • September 5, 1985
    ...not applicable. This issue is one of first impression in the state. I reject Moriwaki's position that the ruling of Cully v. Northern Pac. Ry., 35 Wash. 241, 77 P. 202 (1904), should apply here. In Cully, the court held that accident reports made by defendant's employees to defendant compan......
  • Winneshiek Cnty. State Bank v. Dist. Court of Allamakee Cnty.
    • United States
    • Iowa Supreme Court
    • February 15, 1927
    ...order for inspection of documents. State v. District Court, 27 Mont. 441, 71 P. 602, 94 Am. St. Rep. 831. Also, in Cully v. Northern Pacific Ry. Co., 35 Wash. 241, 77 P. 202, cited in the Davis Case. In Evans v. Seaboard Air Line Co., 167 N. C. 415, 83 S. E. 617, cited in the Davis Case, it......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter §34.6 Analysis
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Chapter 34 Rule 34.Producing Documents, Electronically Stored Information, and Things or Entry Onto Land for I
    • Invalid date
    ...omitted)). (b)Privilege Communications that fall within the attorney-client privilege are not discoverable. Cully v. N. Pac. Ry Co., 35 Wash. 241, 77 P. 202 (1904). The attorney-client privilege, codified in Washington in RCW 5.60.060(2), encompasses confidential communications between an a......

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