Grout v. Tacoma Eastern R. Co.

• Decision Date: 17 December 1903
• Parties: GROUT et al. v. TACOMA EASTERN R. CO.
• Court: Washington Supreme Court

74 P. 665

33 Wash. 524

GROUT et al. v. TACOMA EASTERN R. CO.

Supreme Court of Washington

December 17, 1903

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by Anna Grout and others against the Tacoma Eastern Railroad Company. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Govnor Teats and Jas. B. Reavis, for appellants.

E. M Hayden, for respondent.

FULLERTON, C.J.

This action was brought by the widow and minor children of William Grout, deceased, to recover damages for his death, caused, as they allege, by the wrongful and negligent acts of the respondent. A general demurrer was interposed and sustained to the complaint, and this appeal is from a judgment of dismissal entered after the appellants had elected to stand on their complaint and had refused to plead further. The ultimate question therefore is, do the facts stated entitle the appellants to recover?

In substance it is alleged in the complaint that the respondent is a railroad corporation operating a railroad, and that the deceased was a brakeman in its employ, and at the time of his death was engaged in that capacity on a construction train of the respondent, consisting of an engine and two flat cars equipped with air brakes; that the company, on the day Grout met with his death, had in use at a gravel pit near its main line a steam shovel standing on a temporary side track leading from its main line down into the gravel pit; that the steam shovel stood upon a car or trucks of its own, and was moved from place to place along the respondent's line by being hitched to the construction train and hauled as cars are ordinarily hauled; that the shovel had been and was equipped with a coupling and humper similar to that in common use, but which could not be used in the ordinary way owing to the fact that the respondent had fastened onto the car carrying the shovel a coal box, which extended over its end far enough to overlap the coupling, and prevent another car from being brought near enough to it to couple on by link and pin; that to overcome this difficulty the respondent had equipped the steam shovel with a drawbar 'which has been many years ago, and was on said day considered dangerous by operators of trains, and has long ago been discarded by railroad companies and the users of trains and steam shovels, for the reason that experience has shown the same to be dangerous to life and limb, and totally unfit for use,' which draw bar was about 4 1/2 feet in length and extended from the coupling on the car or truck that held the steam shovel through the coal box a distance sufficient to permit another car to be coupled thereto. It is then alleged that on the 1st day of October, 1902, the respondent sought to move the steam shovel from the place it then was to some other point on its line, and to that end sent the construction train on which Gront was brakeman to haul the same; that when they sought to make the coupling between the steam shovel and the construction train it was found that the coal box held the draw bar too high to permit its being coupled into the coupler in the ordinary way, whereupon the conductor of the construction train directed that it be coupled by placing the bar on top of the coupler and placing a coupling pin down through the bar into the coupling. The complaint then proceeds as follows: 'That the said defendant carelessly and negligently failed to have furnished with the said train or steam shovel a fit and safe pin for the purpose of making the coupling of the said drawbar upon top of the said coupling, and negligently and carelessly furnished the said train crew with a pin defective in this: that said pin so furnished and supplied by the said defendant was worn, and the head of the same was so worn that the pin, when the train was moved, would work down through, and the head of the same would work down through the hole in the drawbar so placed upon the said coupling. That when the said coupling was made as herein set out, complaint was made that the said pin would not hold, that the said coupling was dangerous; whereupon the said conductor who had charge of the said train and the coupling and moving of the said steam shovel looked at the said coupling, and told the deceased that the coupling was good, that it would hold, that it was safe, and ordered the deceased between the said cars and the said steam shovel to manage the said angle-cock or cut-off which set the brake, and ordered the said deceased to cut off the air and set the brakes at any moment he heard a short or signal; and thereupon the said deceased, believing that the same was safe, and relying upon the assurance of the conductor, went between the car and the said shovel, as was necessary for him to do in order to work the said angle-cock or cut-off, after they had moved the said steam shovel a few feet, and, while going at the rate of about three miles per hour, a shout or signal was given, which the deceased took to be, under his instructions, an order to set brakes by the said angle-cock or cut-off, whereupon the deceased, in obedience to the signal, put on the brakes of the said cars and locomotive, stopping the same, whereupon, due and owing to the momentum of the said steam shovel coming towards the said car, and due and owing to the said defective coupling, and due and owing to the said defective pin so furnished and supplied by the said defendant company and used by and under the orders and instructions of the said conductor, the pin so furnished dropped down through the said slot or hole in the said drawbar, permitting the said steam shovel to come upon the said deceased, catching him between the said cars and the said coal box, so negligently and carelessly placed upon the said steam shovel by the said defendant, breaking the neck of the deceased, killing him instantly.' It is further alleged that the respondent failed to furnish a sufficient number of brakemen to do the work required in handling a steam shovel, and that the company's negligence in that regard led to the death of Grout. There was also a general allegation to the effect that Grout was a brakeman of wide experience and long service, and was capable of earning $85 per month at his occupation.

The learned judge of the trial court held, and the respondent contends in the court, that on the facts stated in the complaint there can be no recovery, because the danger which caused the injury and death of Grout was so apparent and obvious that he must be held to have assumed the risk. Indeed, the respondent argues that the task which the deceased undertook to perform...