Dean v. Oregon R. & Nav. Co.

Decision Date29 April 1905
Citation80 P. 842,38 Wash. 565
CourtWashington Supreme Court
PartiesDEAN v. OREGON R. & NAV. CO.

Appeal from Superior Court, Spokane County; Wm. E. Richardson Judge.

Action by H. P. Dean against the Oregon Railroad & Navigation Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Crow J., dissenting.

W. W. Cotton, Thos. O'Day, and L. S. Wilson for appellant.

Barnes & Latimer and Alfred M. Craven, for respondent.

ROOT J.

Respondent and wife brought this action against the appellant to recover damages occasioned by the death of their minor son, who was killed while working for appellant on and about a train filling in a trestle with dirt and gravel hauled by cars constructed for that purpose, and unloaded from said cars while standing upon said trestle. From a judgment in favor of respondent, appellant appeals.

Respondent moves to dismiss the appeal in this case for the reason that the transcript was not certified and filed within 90 days from the time of taking the appeal. One of the appellant's attorneys shows by affidavit that on August 8, 1904, which was less than 30 days from the date the appeal was taken, he dictated a letter to the clerk of the court directing him to prepare, certify, and file a transcript of the record in this case, and that he supposed that the clerk had complied with said request, and relied thereupon, and did not learn anything to the contrary until he received respondent's brief. The clerk, by affidavit, says that he never received such a letter. It does not appear that the delay beyond the 90 days occasioned any delay in the hearing of this appeal, or caused any expense to respondent, or any serious embarrassment. While we do not think that appellant's counsel is free from criticism for not giving the matter more careful attention, yet we do not feel that the oversight of an attorney, who, from the very nature of his business, must be employed and concerned with many different matters, should constitute the basis for punishing his client to the extent of depriving him of the right of appeal, except in those cases where the statute or the established practice of the court makes such action imperative. In this case the court would have imposed terms upon appellant had it been shown that respondent suffered any expense or loss by reason of appellant's neglect and the delay thereby occasioned. The motion to dismiss is denied.

This action was commenced by the parents jointly. Before any evidence was taken, appellant objected to any evidence being admitted, for the reason that plaintiffs were not entitled to recover, and that the complaint did not state facts sufficient to constitute a cause of action. At the close of the case leave was granted by the court to dismiss the wife from the case as a party plaintiff. Appellant contends that this was unauthorized. It is contended that husband and wife connot maintain this kind of an action jointly, and that, an objection to the introduction of evidence having been made at the commencement of the trial, it was too late to permit the wife to be dismissed as a party after the evidence was put in, and that it was error to permit the husband to continue the action. Without deciding whether or not husband and wife may jointly maintain an action of this kind, we do not think the trial court committed error in dismissing the wife and permitting the husband to continue the action. It is not perceived that this action of the court in any manner prejudiced the rights of appellant. The spirit of our Code permits and requires great liberality in all matters of pleading and practice, to the end that substantial justice may be attained. We think the action of the trial court in this particular was justifiable.

The train in connection with which the deceased was working consisted of dump cars which were unloaded by a plow. This plow was drawn through the train by means of a cable and engine attached to what is known as a 'Ledgerwood car.' It was the duty of the deceased to unfasten the doors and to pass through the cars cleaning out the remaining gravel after the plow had passed through the train, so that the doors could be closed and fastened before the cars were reloaded. These cars are 10 feet 6 inches in width, and the sides of the cars are composed of swinging doors, so that when they are unfastened they swing out at the bottom, and let the gravel out at the sides. The ties forming the floor or top of the trestle were 12 feet long, so that the space between the side of the car and the edge of the trestle would be only about 9 inches, more or less. The doors of these cars were unfastened by a lever, and when the cars were empty a man standing on the ground could close the doors, they being fastened by a latch at the top of the side of the car. Appellant claims that it was customary to leave these doors open until the train should pull off from the trestle, and that the men would then get down on the ground and close them. Some of respondent's witnesses testified that deceased was instructed by the foreman to get down on the trestle and close these doors immediately after the gravel was discharged, and while the train was still upon the trestle. It was while the train was on the trestle that deceased climbed down for the purpose, as respondent contends, of closing these doors pursuant to instructions. The train, without any warning, started from the trestle, and precipitated deceased therefrom to the ground, some 40 feet below, causing injuries from which he soon died. It is contended by appellant that the narrowness of the trestle made the closing of these doors thereupon a very dangerous work, and that this danger was open and apparent to the deceased, and that he could not himself recover damages if alive. It is, of course, true that a servant assumes the dangers of his working place that are open and apparent; but we do not think that principle controlling here. The proximate cause of death was not the narrowness of the trestle, or the limited space in which decedent had to work, but it was the unexpected starting up of the train. If, as testified by respondent's witnesses, it was the duty of decedent, in carrying out the orders of the foreman, to get down on the trestle and close these doors while the train stood upon the trestle, it was a service fraught with danger which both the servant and the master should have taken notice of, and they should have regulated their conduct accordingly. The foreman knew that this was dangerous work, and knew that the starting of the train would constitute an additional, distinct, and pronounced element of danger. It was incumbent upon the master, having ordered the servant into this dangerous place, to keep the train still until the work of closing the doors was finished and the servant had returned to a place of safety. There was a flat contradiction in the evidence as to whether or not the foreman gave instruction to close the doors while the train was upon the trestle, and as to whether or not it was necessary to get down on said trestle to close said doors. This evidence being conflicting, it was a question for the jury to pass upon; and, there being sufficient competent and material evidence to sustain respondent's contention in this behalf, the conclusion of the jury cannot be disturbed by this court.

Among other instructions, the trial court gave the following 'The rule of law upon that subject...

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10 cases
  • Fischer v. Davis
    • United States
    • Idaho Supreme Court
    • June 12, 1913
    ... ... 233, ... 48 A. 705; State v. Estes, 34 Ore. 196, 51 P. 77, 52 ... P. 571, 55 P. 25; Dean v. Oregon R. & N. Co., 38 ... Wash. 565, 80 P. 842; First Nat. Bank v. Fowler, 51 ... Wash ... ...
  • Stout v. Cunningham
    • United States
    • Idaho Supreme Court
    • January 19, 1917
    ... ... supra; Curtin v. Ingle, supra; Maxwell v. Griffith, ... 20 Wash. 106, 54 P. 938; Dean v. Oregon R. & N. Co., ... 38 Wash. 565, 80 P. 842; Brunnings v. Townsend, 6 Cal. Unrep ... 647, ... ...
  • Williams v. City of Spokane
    • United States
    • Washington Supreme Court
    • April 28, 1913
    ... ... Moran Bros. Co., 43 Wash. 428, 86 P. 646, ... 117 Am. St. Rep. 1058; De Mase v. O. R. & Nav. Co., ... 40 Wash. 108, 82 P. 170; Goldthorpe v. Clark-Nickerson ... Lbr. Co., 31 Wash. 467, 71 P. 1091; Dean v. O. R ... [73 Wash. 245] & Nav. Co., 38 ... Wash. 565, 80 P. 842; Dumas v. Walville ... ...
  • Anderson v. Minneapolis, St. P. & S. Ste. M. Ry. Co.
    • United States
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    • January 31, 1908
    ...ought to have, discovered plaintiff's negligence, will be found collected in 1 Thompson, Neg. pp. 228, 229, § 239. And see Dean v. Oregon, 38 Wash. 565, 80 Pac. 842. The reasoning is as follows: Where the defendant owes plaintiff no duty in the performance of which plaintiff's peril would h......
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