Egley v. Oregon Ry. & Nav. Co.

• Citation: 26 P. 973,2 Wash. 409
• Court: United States State Supreme Court of Washington
• Decision Date: 04 June 1891
• Parties: EGLEY ET UX. v. OREGON RY. & NAV. CO.

26 P. 973

2 Wash. 409

EGLEY ET UX. v. OREGON RY. & NAV. CO.

Supreme Court of Washington

June 4, 1891

Appeal from district court, Walla Walla county.

W W. Cotton and C. B. Upton, for appellant.

Brents & Clarke, for respondents.

DUNBAR J.

The undisputed facts in this case are that Zene Egley, on the 3d day of May, 1889, was run over by the switch-engine of the defendant, in the city of Walla Walla, and as the result thereof his right leg was so crushed that afterwards it was amputated about four inches below the knee-joint. This action is brought by the plaintiffs against the defendant for the injury to the said Zene Egley, the child of the plaintiffs. The plaintiffs, as will be seen by reference to the pleadings, alleged that this injury was caused by the defendant in wrongfully inviting, inducing, and permitting said child to be and to go upon the said engine and thereafter carelessly running and operating the same while the child was thereon, exposed to great danger. The defendant in its answer denied these allegations, and set up the defense of contributory negligence. Other matters in relation to the ownership of the road were contested at the trial below, but were abandoned by the appellant here.

The fourth special finding of the jury was entirely unwarranted and unsupported by the testimony. In answer to the question "Did the said Zene Egley know that it was dangerous for him to ride upon the engine and freight-cars of the railway mentioned in the complaint, in the manner in which it has been shown by the evidence he was doing at the time he was injured?" Jury answer, "No." There is no evidence tending to prove this finding. The whole testimony shows that Zene Egley was a boy of ordinary understanding, capable of comprehending and acting upon what was told him. It appears from the testimony of all parties (including the testimony of the boy himself) that he had been warned time and time again, not only by his parents, but by the servants of the company and his associates, not to attempt to ride on the cars. His own father testified as follows: "Well, I often told him not to ride upon the cars; not to go near them. I cautioned him in this respect." It is not too much to say that the jury ought to have understood from the expression, "I cautioned him in this respect," that the witness meant to say or did say, in effect, "I warned him of the danger of riding on the cars." The boy himself testified that he was afraid he would get run over by the cars. On redirect examination, commencing on page 82 of the transcript, the following testimony was given: "Question by Mr. Brents. Zene, you stated yesterday that you knew it was dangerous to be on that back end of the tender. When did you first know that it was dangerous,-when did you first find out that it was dangerous? Answer. Before I got hurt,-before. Q. Did you know it was dangerous before you got hurt? A. Yes." This was direct and positive testimony by the boy in answer to direct questions by his own attorney, and was not in any way affected by the leading and misleading examination, which immediately followed, which was as follows: "Question. Did you know it after you got hurt? Answer. Yes, sir. Q. You knew it by getting hurt? A. Yes, sir. Q. Was that the first thing that caused you to know that it was dangerous? A. Yes, sir." Cross-examination which followed was as follow: "Question. Zene, didn't your father and mother tell you not to go upon the engine? Answer. Yes, sir. Q. Did they tell you why? A. Yes, sir. Q. When did they tell you not to get upon the engine? A. Before I got hurt. Q. Why did they tell you not to get upon the engine? A. Said I would get hurt. Q. Zene, have you ever been driven away from the cars at various times? A. Yes, sir. Q. Did the trainmen ever say anything to you? A. Yes, sir. Q. What did they say to you? A. Told me to get away. Q. Did they say they would do anything to you if you got on board? A. Yes, sir. Q. What did they say? A. Said they would punish me. Q. You knew it was dangerous to get on there, didn't you, before the accident? A. No, sir. Q. Hadn't you been told it was dangerous? A. No, sir. Q. Didn't your mother tell you it would hurt you? A. Yes, sir. Q. Didn't your father tell you it would hurt you? A. Yes, sir. Q. Well, didn't you know it would hurt you? A. Yes, sir. Q. And you knew this before the accident? A. Yes, sir." Thus it will be seen that, while the boy testified that he did not know it was dangerous, it is evident that he did not definitely understand the meaning of the word "dangerous," for he testified in the next breath that his father and mother told him it would hurt him, and that he knew it would hurt him. It is too evident for discussion that the testimony of the boy, outside of any other testimony, shows conclusively that he did know it was dangerous for him to ride upon the cars in the manner in which he was riding when he was hurt, and that there was no conflict of testimony on that subject worthy of the consideration, of the jury; and, while it is true that a case will not be taken from the jury when there is conflict of testimony, and that a court will not be justified in disturbing a verdict because its judgment may run counter to the judgment of the jury, or because the weight of testimony is, in the opinion of the court, opposed to the verdict, it is equally true that, where there is no conflict of testimony on material points, and there is no testimony tending to establish a fact the establishment of which is necessary to warrant the verdict, the court will not hesitate to interfere in the interests of justice, and reverse the judgment.

In this case it is shown by the testimony that Zene Egley was 9 1/2 years old. It is shown by the testimony, and not disputed that he was a boy of ordinary intelligence and practical experience, and that he was familiar with the workings of railroads, and especially with the workings of the switch-engine by which he was injured, and that he had discretion enough to know that the amusement on which he was insisting was amusement fraught with danger, and that he was a trespasser on the railroad when he was stealing the rides. He may not have known the technical meaning of the word "trespass," but all the testimony, including his own, shows that he knew he had no right on the car; that not only had he been cautioned and forbidden by his parents to go upon the cars, but had been frequently driven away by the yard-master and other employes; and that they had threatened to punish him if he did not keep away, and shows that he knew he was a wrongdoer. See the following testimony: "Question. Do you know the yard-master by sight? Answer. Yes, sir. Q. Had he never driven you off the cars? A. Yes, sir. Q. How many times? A. I don't know. Q. How many do you think? A. About three times. Q. About how many? A. Three; not more than three, though may be more....