Hamlin v. Columbia & P.S.R. Co.

• Decision Date: 11 March 1905
• Court: Washington Supreme Court
• Parties: HAMLIN et al. v. COLUMBIA & P. S. R. CO.

79 P. 991

37 Wash. 448

HAMLIN et al. v. COLUMBIA & P. S. R. CO.

Supreme Court of Washington

March 11, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Ben. F. Hamlin and others against the Columbia & Puget Sound Railroad Company. From a judgment for plaintiffs defendant appeals. Reversed.

Piles Donworth & Howe, C. H. Farrell, and Dallas V. Halverstadt for appellant.

F. E Knowles and Frank H. Knapp, for respondents.

RUDKIN, J.

For a number of years prior to the 14th day of March, 1903, the defendant, the Columbia & Puget Sound Railroad Company operated a railroad through the village of Cedar Mountain, in King county. On the above date, and for some few years prior thereto, Cedar Mountain was a deserted mining camp. The entire population of the place consisted of a few families. The railroad in question was principally used as a logging and coal road. As the railroad approaches Cedar Mountain, in the direction of Seattle, it rounds a curve in close proximity to Cedar Mountain, and passes through a cut within a few hundred feet of the post office at the latter place. On the morning of the above date an engine drawing four cars backed up the railroad toward Cedar Mountain at a velocity of about 15 or 16 miles per hour, as had been the custom every day for a period of about five years. Mrs. Hamlin, wife of the plaintiff J. D. Hamlin, and the mother of the other plaintiffs, together with her family, had lived about three-fourths of a mile from Cedar Mountain, in the direction of Seattle, on the line of said railroad, for a period of about four years prior to March 14, 1903. On the morning of that day she started from her home to the post office at Cedar Mountain, and, as she reached a point on the railroad track a short distance from the post office, she was struck by the above train and instantly killed. None of the train crew saw or observed the deceased on the track before the accident. There was but one eyewitness to the accident, and he testified on the part of the plaintiffs. This witness saw the deceased coming along the railroad track in the direction of Cedar Mountain, and the next instant saw the train approaching from the same direction behind the deceased. She was struck by the train and killed, as above stated. This witness was from 500 to 1,000 feet further from the train than the deceased, and both saw and heard the train before it struck her. There was nothing to prevent the deceased from seeing the approaching train for a distance of 300 feet before it struck her, had she looked. The deceased was 49 years of age at the time of her death, and was quite deaf. There was a public road leading from the home of the deceased to Cedar Mountain, almost parallel with the railroad track. The deceased, her husband and children, and the few villagers and school children resident in and about Cedar Mountain, had been in the habit of using the railroad track as a footpath in going to and returning from Cedar Mountain for a number of years prior to the accident. It is not claimed that any of these parties had an express license to use the railroad track as a footpath, nor is it claimed that they had ever been forbidden to use it by any officer or agent of the defendant company. There were signs on the right of way on either side of Cedar Mountain, and at different places along the track, warning the public not to walk upon the track, and cautioning them against danger. Some of the witnesses for the plaintiffs claimed that these signs were only placed at crossings, and that the warning only applied to such places. This action was brought to recover damages for the wrongful act of the defendant in causing the death of the deceased. The plaintiffs had judgment below, and def...