Dahlstrom v. Northern P. Ry. Co.

Decision Date09 October 1917
Docket Number13974.
Citation98 Wash. 390,167 P. 1078
PartiesDAHLSTROM v. NORTHERN PAC. RY. CO. et al. DAHLSTROM et ux. v. SAME.
CourtWashington Supreme Court

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Two actions, by G. H. Dahlstrom and by G. H. Dahlstrom and wife against the Northern Pacific Railway Company and another. From judgments for plaintiffs, defendants appeal. Affirmed.

Morris J., dissenting in part.

Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellants.

Teats Teats & Teats, of Tacoma, for respondents.

MAIN, J.

These two actions were brought for the purpose of recovering damages for personal injuries, and, by stipulation, were tried in the superior court as one action. In one action damages are sought for the injury sustained by G. H. Dahlstrom; in the other, for injuries sustained by Lillian Dahlstrom, the wife of G. H. Dahlstrom. The cases have been three times tried in the superior court though this is the first appeal to this court. The jury returned separate verdicts--in one, finding a verdict in favor of G. H. Dahlstrom in the sum of $1,000; in the other, finding a verdict for the injuries which Mrs. Dahlstrom had sustained in the sum of $16,000. The defendants in each action are the Northern Pacific Railway Company and Jacob Heether, a conductor on one of its trains. Before the entry of the verdicts, a motion was made as to each of the defendants for a judgment notwithstanding the verdict, and, in the alternative, for a new trial. Both of these motions were overruled, and judgments were entered upon the verdicts. From these judgments the appeal is prosecuted.

The facts which are either not in dispute or which the jury had a right to find from the evidence are substantially as follows: The Northern Pacific Railway Company owned and operated a railway line from Tacoma, Wash, to Portland, Or. The Chicago, Milwaukee & St. Paul Railway Company owned and operated a line from Tacoma to the Grays Harbor country. Both these lines passed through a station called Rainier. About one mile north of this station, the Milwaukee road crossed over the Northern Pacific on a trestle. On the 2d day of July, 1915, the contracting firm of Porter Bros., Grant, Smith & Co. assembled their cars and material in the freight yards of the Northern Pacific Railway Company at Tacoma, for the purpose of having the same transported to Portland, Or. This outfit consisted of several cars of material and a hoisting crane. The hoisting crane was a 20-ton lifting crane constructed on its own trucks. The body of the crane consisted of a revolving turret, the machinery for its operation being inclosed in a cab or house on top of the trucks. The cab was a little wider than the width of the trucks, so that it extended about 3 inches over each side thereof when placed lengthways of the truck in a traveling position. When the cab was swung around at right angles to the truck, the end thereof extended out from the side of the truck some 6 or 7 feet. Attached to the rear of the cab, or turret, was a boom, 45 feet long, used for lifting heavy objects. In preparing the crane for shipment, it was necessary to attach a flat car to the rear thereof and chain the flat car and the crane together, so as to make them practically one car for operation purposes. The boom was then lowered onto the flat car and disconnected from the turret, except that the heavy cables which extended from the drum of the crane to the boom were not detached, but were slackened sufficiently so that there would be no strain on them. The crane was provided with rods which extended from lugs on the rear end of the frame of the trucks to the ash pan, which rods were intended to keep the crane in place and prevent it from swinging around and extending over the side of the truck. The crane, together with the other machinery and supplies, was prepared for shipment by employés of Porter Bros., Grant, Smith & Co. After the machinery had been prepared for shipment, the cars containing the same were inspected by the car inspector for the Northern Pacific Railway Company. The purpose of this inspection was to ascertain whether the cars had been so loaded as to be in reasonably safe condition for transportation. The cars which contained this machinery were placed in the rear of train No. 963, which was a local freight scheduled to leave Tacoma at about 6 o'clock, a. m., and arrive at Rainier at about 8:10 a. m., though on the morning of the 3d of July, 1915, the train left Tacoma something like an hour late. This train was in charge of Jacob Heether, one of the appellants, as conductor; the train crew consisting of the conductor, three brakemen, the engineer, and the fireman. The equipment of the contractors was accompanied by J. C. Burke, one of their employés. The train consisted of about 40 cars and the caboose, the local freight being in the front end of the train. The train left Yelm at about 9:38 a. m., and the distance between Yelm and Rainier is approximately 5 miles. After leaving Yelm, Frank Russell, the rear brakeman, and J. C. Burke, the employé of the owners of the machinery referred to, rode in the cupola of the caboose. Heether, the conductor, and the two other brakemen, rode upon the top of a box car which was fourth from the engine. While the train was passing under the Milwaukee trestle, shortly before the car carrying the crane reached the trestle, the crane swung around so that it extended over the side of the car 5 or 6 feet. As the crane passed under the trestle in this way, it tore out a row of piles supporting the Milwaukee track. The boom was thrown from the car upon which it was riding, and was dragged along until the train was brought to a stop. Russell, the rear brakeman, when he observed that the crane had swung around and that it would come into contact with the piles, applied the air to stop the train. The train at this time was traveling from 15 to 18 miles an hour, and was stopped after going a distance of about 500 feet after the air was applied. When the train stopped, Russell, the rear brakeman, took two red flags which were in the caboose, gave one to Burke, and directed him to go up the Northern Pacific track and flag any train that might be approaching. After the train stopped, Heether and the two brakemen got down from the top of the car on which they were riding and started to walk towards the rear end of the train. Russell went upon the Milwaukee track for the purpose of flagging any train that might approach the trestle over that line. Eight or 10 minutes after the Northern Pacific train stopped, a passenger train on the Milwaukee line, then due at the station of Rainier, approaching from Tacoma, ran upon the weakened portion of the trestle. The engine went through, killing both the engineer and the fireman. The combination baggage and smoking car, in which G. H. Dahlstrom was riding, also went down. The day coach, in which Mrs. Dahlstrom was riding, likewise went through the broken trestle. This coach turned over and was badly wrecked. It is for the injuries sustained in this wreck that the actions were brought.

We will first consider the motion of the Northern Pacific Railway Company for judgment notwithstanding the verdict. The respondents claim that the company had been negligent in two respects: (a) In placing the crane in the car, when the crane was in an unsafe condition for transportation; and (b) in failing to properly and timely warn the enginemen on the Milwaukee passenger train, by flagging or otherwise. As already stated, after the piling was torn out by the Northern Pacific train, 8 or 10 minutes elapsed before the Milwaukee train went down. Burke had gone some distance up the Northern...

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