Great Northern Ry. Co. v. Willard

• Decision Date: 08 January 1917
• Docket Number: 2753.
• Citation: 238 F. 714
• Parties: GREAT NORTHERN RY. CO. v. WILLARD.
• Court: U.S. Court of Appeals — Ninth Circuit

238 F. 714

GREAT NORTHERN RY. CO. v. WILLARD.

No. 2753.

United States Court of Appeals, Ninth Circuit.

January 8, 1917

The minor in whose behalf this action for damages was brought against the plaintiff in error as defendant in the court below was 9 years of age when he received the injury complained of by the falling on him of some ties from a pile of ties alleged in the complaint to have been stacked on the right of way of the plaintiff in error railway company, at the town of Springdale, Stevens county, state of Washington through which town there was one public street or roadway crossing the railroad track, and near which street the pile of ties in question stood, the complaint alleging that the ties weighed upwards of 300 pounds each, and were piled in about 10 rows of eight ties high in each row; that they were not braced, and that for a number of months prior to the day of the happening of the accident 'said pile of ties and said structure was enticing, alluring, and attractive to children of tender years, both boys and girls, and said pile of ties was of such character as to be attractive to children, and of such character as to appeal to childish curiosity and instincts, and for a number of months prior to the date hereinafter referred to, a large number of children attracted thereby, played in, upon, and about the premises of defendant upon and about said structure, and said pile of ties, all of which was known by defendant, or in the exercise of ordinary care should have been known by defendant' that on or about the 23d day of February, 1914, the minor in question, not knowing or appreciating the condition of the pile, went upon it, when a large number of the ties fell throwing him to the ground and inflicting the injuries for which the suit was brought. The defendant company did not deny that the boy was injured by the falling of the ties, but put in issue the other material allegations of the complaint, and here insists upon its contention made in the court below that the case made by the evidence did not justify its submission to the jury, and that the court should have granted its motion made upon the conclusion of all of the evidence for a directed verdict in its favor; and that is the main question here presented for determination.

Charles S. Albert and Thomas Balmer, both of Spokane, Wash., for plaintiff in error.

Plummer & Lavin, of Spokane, Wash., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge (after stating the facts as above).

The evidence in the case is without any substantial conflict upon any material point. It shows that the ties in question were cut from the farm of one C. W. Magers, and by him sold to the plaintiff in error, he agreeing to haul and pile them at Springdale, which he did with the assistance of his two sons. Magers, who was a witness on behalf of the plaintiff, testified, among other things, that:

'Nobody on behalf of the company directed the manner or where these ties should be piled; nothing more than their bill in the depot; they specified the way they should be piled and the shape of the ties also.'

The record shows that when the defendant company offered in evidence the directions posted in the depot (designated in the record as Defendant's Exhibit No. 7), specifying how the ties should be piled, the plaintiff objected to its introduction, which objection was sustained by the court, and which ruling is here assigned as error. That exhibit was a notice reading, in part, as follows:

'TIES

'Will be purchased by this company at its option until further notice as per description, price and specifications given hereon, at all stations on the Spokane and Marcus Divisions of the Great Northern Railway in United States between Troy, Mont., and Dean, Wash., including all main and branch lines in limits described. (Specifications regarding character, sizes, and prices of ties omitted as immaterial.) Note-- Following instructions must be followed in piling ties on right of way:

'Permission must be obtained at all stations at which there are agents to pile ties on the company's right of way, and agent will designate place where they are to be piled. Ties must be piled at all stations or sidings between switches on skids at or above grade, convenient for loading.

'They must be piled eight ties or more high with a space of three feet between ranks with the small end of each tie facing the track.

'The first rank to be not less than eight feet from the nearest rail, and no ties shall be to exceed 50 feet from the track. All ties must be piled on the ends so inspector can see whether they are all of an even length.

'No peeling of ties will be allowed on company's right of way.

'These instructions must be strictly followed or you will be required to furnish necessary help to rehandle the ties for their protection, economical handling when loading, or for inspection.

'Cards to show ownership of ties and address of owner will be furnished by the purchasing agent, inspector, or station agent. They must be filled out in ink, as provided for, and attached to each pile.

'Any person or persons violating these terms will be considered trespassers, and will assume all risk and be held liable for all damage caused by their action. All ties put out in accordance with this circular and received by the company will be inspected monthly when practicable, commencing with September, 1913, and payments made within thirty days after the month in which inspection is made.'

We think the railway company was entitled to introduce the exhibit in evidence for the purpose of showing that by the terms of the sale the ties in question were not stacked by the company but by the seller, Magers, and to have that fact considered by the jury in connection with the balance of the evidence, in the event the case should be submitted to them. But without at all considering the contents of the exhibit (which, as has been said, was not admitted in evidence) we are of the opinion that the evidence was insufficient to fix any liability upon the defendant company, and therefore that no case was made for the consideration of the jury. It shows that the ties were hauled as cut, that they were hewn on both sides and peeled, and that the cutting and hauling extended from about the 1st of January to the 20th of February, and, in consequence of the season of the year, had more or less snow and ice on them. The ties, which varied in width from 6 to 12 or 14 inches, were piled 8 high and in rows as they came, as close together as possible, but necessarily resulting in there being several inches of space between many of them, owing to the difference in width of the respective ties. There were, according to the evidence, about 80 of them in all, the first hauled being laid in the place of other ties just removed and the balance on skids first laid upon the snow, which was, at the time, about 12 inches deep.

In addition to the street or roadway that has been mentioned, there was a path leading past the pile of ties, along which people passed in going from one side of the railway to the other. There was testimony on the part of the plaintiff that for many weeks it had been the custom of the boys in the town of Springdale to play upon the pile of ties in question, a number of them being much older, and presumably heavier, than the plaintiff, and that until the accident to the latter none of the ties had ever fallen. For example, a brother of the plaintiff, Claire Willard, stated:

That he was 17 years old (when testifying, the plaintiff then being 11), and had lived in Springdale about 10 years. 'I have played on this pile of ties referred to in the testimony,' said the witness. 'Every once in a while I would be on them. One day I would be on, and then I wouldn't be on for quite awhile. It would be along in the evening. It would not be very long. Sometimes in the afternoon. I have been on the tie pile with them, but I have not noticed how many boys was on there, three or four. I have not noticed any more than that on them at any one time. I was there once in awhile while the ties were piled there. They was piled one on top of the other. Some was close together and others farther. They were apart all the way from that far down, for instance (illustrating) about 8 inches. * * * I paid no particular attention to this particular pile before this, and don't remember particularly with reference to it at all. I played on there once a day, and then for a long time would not play there. When I played up and down on these ties none of them fell with me, and I never knew of them having fallen on anybody.'

The witness Clifford Ragsdale, called on behalf of the plaintiff, who also testified that he lived in Springdale, and was 15 years old, said:

'I played on this pile of ties two or three times a day for an hour for about two months. Sometimes two or three or two to four boys would play there with me. This was before Leslie got hurt. These ties were piled on top of each other. Some were close together, and some had holes in them. These holes would be about 6 inches. * * * I played on these ties before. I played with Leslie on them before he got hurt, once. I was not around the day Jimmy Stevens was with him (James Stevens being the boy who was with Leslie when he was injured). I would get on top of the ties, crawl up on them, and sit down. I never had any difficulty with them. They never fell down with me. I never paid any particular attention to this particular pile of ties that was there.'

The witness Ervin La France, also called as a witness on behalf of the plaintiff, testified that he also lived in Springdale and was 15 years of age. He said:

'I know the...