Guley v. Northwestern Coal & Transp. Co.

• Decision Date: 28 December 1893
• Court: Washington Supreme Court
• Parties: GULEY v. NORTHWESTERN COAL & TRANSP. CO.

35 P. 372

7 Wash. 491

GULEY v. NORTHWESTERN COAL & TRANSP. CO.

Supreme Court of Washington

December 28, 1893

Appeal from superior court, Thurston county; W. W. Langhorne, Judge.

Action by Ernest A. Guley against the Northwestern Coal &amp Transportation Company for injuries sustained while in defendant's employ. From a judgment in plaintiff's favor, defendant appeals. Reversed.

Dunbar C.J., and Scott, J., dissenting.

Phil Skillman, for appellant.

C. S Salisbury, Will H. Thompson, Eduard P. Edsen, and John E. Humphries, for respondent.

STILES J.

The complaint in this case alleged that on the 8th day of March, 1888, plaintiff, then a boy of 13 years, was in the employ of defendant, at its coal mines, in Thurston county, as a screener, and that while so employed he was ordered by defendant's superintendent to leave his work, and, with the assistance of another boy, of about plaintiff's age, to take a car loaded with coal down a steep grade to the scale at said mines. Paragraph 6 then proceeds as follows: "That the plaintiff was inexperienced in handling the brakes of cars, and that the brake on said coal car was defective, and the same was known to defendant, and, despite the utmost efforts and exertions of plaintiff and his companion, the car got beyond their control and rushed down a steep grade with such great speed that plaintiff was thrown from said car to the ground, falling in such a manner that his right hand lay across the rail of the car track, and was permanently injured, to wit, by the car running over his right hand, and crushing and mangling it in such a manner that amputation was necessary, and the fingers of said right hand were in consequence amputated, and the hand crippled for life." The answer admitted the plaintiff's employment as a coal screener; denied having ordered plaintiff to get upon the car, or that the brake was defective; and set up facts showing that he had, in spite of the defendant's commands, and without its knowledge, left his work, and gone upon the car, when he was injured by his own carelessness. The reply was a general denial of the facts showing contribution. The plaintiff alone testified to the facts, in substance as follows: "Ismay, the superintendent, called me and his son, a boy of my own age, from the place where we were working, to run a few cars down to the scales, to weigh them. He gave me a stick to put in the brake of the car, so I could manage it. He said: 'Take this stick, and drop that car down. The brake is not good.' I knew nothing about the brake. Had run other cars down the same way, but not with a stick. Put the stick through the spokes of the brake wheel, and used it as a lever. The other boy helped, by taking hold of the other side of the wheel. We let the car down about 20 feet to the scales. I put my whole weight against the stick, and it broke, and I fell upon the ground in front of the car, and was stunned, as I struck on my head. Knew nothing more until I got out from under the car, and found my hand crushed. Ismay was there, within ten or fifteen feet of me, and he took me on his back, and carried me home. When my father came in, he was blaming me for it, and Ismay said: 'Don't blame the boy. I was to blame for it. I told him to brake the car down, and gave him the stick to brake it down with."' Cross-examined: "The car was not running fast. The front truck only passed over me. Then it stopped. It was necessary to have the brakes set to keep cars from running down. We loosened the brake. Then the car started, ran about its own length, and stopped. Had been discharged and re-employed by the company twice before the accident, and again afterwards. Ismay said, the first two times, that it was because I was lazy. The last time was because I was not able-bodied. Was not in the habit of leaving my work, and getting on the cars for a ride. Didn't know that any one was behind the car, pinching it ahead with a crowbar. There might have been another car behind the one I was on. If the stick had not been rotten, I would not have fallen." Redirect: "The brake was hard to throw, and wouldn't hold the car without the use of unusual force. Ismay never told me to keep away from the cars. Did not know of any rule forbidding boys to go there." Plaintiff's foster mother and one Striker corroborated him as to what Ismay said, in taking the blame for the accident upon himself. His father was dead, at the time of the trial. Striker further stated that the railroad grade between the bunker and the scale was not heavy; enough to run a car down without forcing it any, unless the track was dirty, as it generally was at the bunkers. Didn't think a car, along there, would run a mile an hour. This testimony by no means met the allegations of the complaint that the injury occurred by plaintiff's being thrown off the car while it was running away down a steep grade, and by reason thereof, and because the brake was defective, and would have justified the court in striking it all out. But having been received without objection, and no motion to strike, or suggestion of surprise having been made, a nonsuit was properly refused.

On behalf of the defendant, the superintendent testified that plaintiff's discharges, both before and after the accident, were because he persisted in leaving his work and getting on the coal cars as they were being handled along the track. He also denied having told plaintiff to get upon the car,-or having given him a stick,-or to brake the car, or that the brake was defective, to his knowledge. The car in question had been loaded and run down within a few feet of the scales, where it was stopped by dirt on the track. Witness was back in the rear of a second car, which had been loaded, and had been pinching the second car ahead so as to strike the first car, and bump it on to the scales. Just at the moment of the collision, he turned, and saw plaintiff and his own boy on the front end of the first car, and saw plaintiff fall. He ran around, and found the front truck not yet on the scales, and plaintiff lying under this truck, the first wheel of which had passed over his hand. Drew the boy out from under the car, and carried him home. Witness denied having said he was to blame, in having directed the boy to get on the car, and giving him a stick, or that Striker was present when he carried him in. Had instructed the boys, many times, not to get on the cars, and told other employes to see that they did not do so. Punished his own boy for getting on this car, and on other similar occasions. Ismay, Jr., testified: "We were screening coal, and my father, with two or three other men, went down to load some cars that the train had just brought in. So we hurried up with our screening, and went down to see if we could catch a ride from the bunkers down below. When we got down to the bottom of the stairs, we saw a car standing. We thought it was on the scales, and we started to get onto it; and we saw a stick lying off by a stump there, and both ran for it at the same time, but he got the stick first. We climbed upon the car to take the brake off, and he put the stick into the brake wheel, and swung around, and just as he swung around the car behind bumped, and as the car bumped the stick broke, and he fell on his back on the track. The car did not move more than six feet. My father had frequently told us to stay off the cars, and he whipped me for getting on at this time, as well as others. He did not tell us to get on the car." Other adult witnesses, several in number, corroborated the superintendent and contradicted the plaintiff; six of them, as to the frequent and positive instructions given the boys to keep off the cars. The jury, without any evidence to base it on, found, specially, that the brake was defective, and that defendant knew it. They also found that it was the breaking of the stick that caused plaintiff to fall; that another car collided with the car he was on; that there was no rule, of which plaintiff had knowledge, against his going on cars; and that he went upon the car under the order of the superintendent. They found generally for the plaintiff. While we shall ordinarily be very slow to interfere with the verdict of a jury, where the testimony is conflicting, we do not think justice would be done, were this one allowed to stand. There may be, and sometimes are, cases where the testimony of a single witness, even a child, will outweigh that of many opposed, where there are circumstances of suspicion connected with them. But there was not, in this case, a single attempt to break down or impeach a witness for the defendant; and much of what they did say, that was material, was not contradicted by the plaintiff, though he was called in rebuttal. Credible witnesses cannot be set aside in this way, and a verdict supported on the uncorroborated testimony of a single witness, and he the party most interested. Where the clear weight of the evidence is with either side, there is no substantial conflict, and the court should take the decision of the case from the jury. Thomp. Trials, § 2250; Wilds v. Railroad Co., 24 N.Y. 430; Corning v. Nail Factory, 44 N.Y. 577.

No part of the instructions given on the question of the defective brake was proper, in the case, because there was no competent testimony on that subject. One of the principal grounds urged to support the recovery was that plaintiff was a child of tender years, without knowledge or experience to enable him to care for himself. Yet his statement that the brake was hard to...