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

• Decision Date: 10 September 1913
• Court: Washington Supreme Court
• Parties: HANSON et al. v. COLUMBIA & P. S. R. CO.

134 P. 1058

75 Wash. 342

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

Supreme Court of Washington

September 10, 1913

Department 2. Appeal from Superior Court, King County; Daniel H. Carey Judge.

Action by Cassie Hanson and others against the Columbia & Puget Sound Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Farrell Kane & Stratton and Stanley J. Padden, all of Seattle, for appellant.

Arthur E. Griffin, of Seattle, for respondents.

Deceased at the time of his death was earning $3.90 a night.

ELLIS J.

This is an action by the widow and minor children of Joseph Hanson deceased, to recover damages for his wrongful death, which they claim was caused by the negligence of the defendant. The deceased was employed as a switchman in the defendant's yards at Seattle. At about 10:15 o'clock on the night of August 30, 1911, a switching crew, consisting of the engineer, fireman, the switch foreman, the deceased, and another switchman, were engaged in transferring a string of 25 loaded coal cars from another track to the scale track for weighing. These cars were being pushed onto the scale track by a large powerful switch engine, which with the tender weighed about 207 tons. The deceased and the other switchman were sitting in an opening across the end of the front car, the car farthest from the engine, when the train was suddenly jerked throwing the deceased forward between the rails. He struck on his feet, fell forward on his hands and knees, and before he could recover himself was run over and killed.

The negligence charged was: (1) Placing this powerful switch engine in charge of an incompetent, inexperienced, careless, and negligent engineer, who by an unusual and unnecessary emergency application of the air brakes caused the car to jerk, killing the deceased; (2) failure to furnish a safe place to work in that the roadbed was filled with slippery mine rocks of large and small sizes and was rough, uneven, and dangerous; (3) failure to furnish a reasonably safe place in that there was permitted to be and remain a pile of timbers so close to the west side of the scale track and certain bridge piling so close to the east side as to prevent the switchman from riding upon the sides of the cars; (4) failure to provide reasonably safe equipment in that the car in question was not provided with any platform on the end or with sufficient or suitably placed grabirons, handholds, or with ladders either on the ends or sides. There were further allegations of knowledge and failure to warn the deceased of these things on the defendant's part and lack of knowledge or notice on the part of the deceased. The answer denied generally the negligence charged and set up as affirmative defenses, contributory negligence, assumption of risk, and negligence of a fellow servant. These defenses were traversed by the reply. The trial resulted in a verdict of $15,000 for plaintiffs. At appropriate times the defendant objected to the introduction of any evidence, moved for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict. These motions were denied. From a judgment on the verdict, the defendant appealed.

The many assignments of error may be conveniently grouped and discussed under the following heads: (1) Error in permitting the introduction of any evidence, under the allegations of the complaint and counsel's opening statement; (2) error in admitting certain evidence and in permitting certain questions claimed to have been prejudicially leading; (3) insufficiency of the evidence to sustain the verdict; (4) error in the giving of certain instructions; (5) error in that the verdict was excessive.

1. A careful reading of the complaint and of the opening statement of counsel for the respondents convinces us that the first charge of error is groundless. It is manifest that, if the allegations of negligence as charged in the complaint, and which we have condensed in our statement of the case, were true, they stated a cause of action. The opening statement of counsel was to the effect that he would prove these things. The contention that the complaint showed either an assumption of risk on decedent's part or injury by negligence of a fellow servant is without merit. If, as alleged, the appellant knew and the deceased did not know of the engineer's incompetency, there was no assumption of risk; and if, as alleged, the engineer was inexperienced and incompetent and by reason thereof stopped the car with an unnecessary jerk, causing the accident, there was no question of fellow servant involved. It was the master's duty to employ a competent engineer. These things were sufficiently alleged. They were questions for the jury upon evidence. 1 Labatt, Master & Servant, § 186.

2. The respondent was permitted to introduce in evidence a plate illustrating the distribution of handholds, grabirons, ladders, and stirrups upon cars according to the standards prescribed by the Interstate Commerce Commission. This was objected to an the ground that the action was not brought under the Federal Liability Act. The plate was admitted but, as stated by the court in the presence of the jury, only as illustrating oral testimony as to what were the usual and reasonably adequate safety appliances. There was no prejudicial error in its admission for this illustrative purpose.

The appellant's switch foreman was permitted, over appellant's objection, to testify as to the contents of a letter which he claimed to have written to the assistant superintendent complaining of the engineer's incompetency. He testified that he placed the letter on the desk of the assistant superintendent where it was customary to place such communications. Sufficient demand was made upon the appellant to produce the letter. It was not produced; the assistant superintendent claiming that he never received it. Whether he did receive it or not was a question for the jury. We find no error in the admission of evidence as to its contents.

It would unnecessarily lengthen this opinion to discuss in detail the questions permitted which it is claimed were prejudicially leading. They were propounded to a witness who was at the time an employé of appellant and who, as counsel for respondents stated, was hostile to the respondents. In such a case great latitude is permissible, even to the extent of cross-examination by the party producing the witness. The matter is largely within the discretion of the trial judge. There was no abuse of the discretion in this instance.

3. It is contended that the evidence was insufficient to sustain the verdict in that it failed to establish the negligence charged. The evidence was conclusive that there was a pile of timbers close to the west of the track and that track was maintained in close proximity to the piling of an overhead bridge on the east side. These obstructions were from 2 1/2 to 3 1/2 feet from the nearest rail of the track. Obviously the overhang of the car would render riding on the side of the car dangerous in the extreme, even had there been any means for so riding. That such a condition in a switch yard injected an unnecessary element of danger into the place of work of the switchmen is too plain to admit of argument.

There was also ample evidence that the roadbed about seven days before the accident had been filled with slippery rocks or shale from the coal mines; that this material was piled from two to three feet high on either side of the track at the time and place of accident, and the space between the ties was left with holes from eight to ten inches deep; that in properly prepared switch yards the ground would be filled to a level with the ties, and the whole space between tracks and rails surfaced with cinders or burnt clay so as to make an even surface that the switchmen might not be subjected to an unnecessary danger of stumbling. The failure to maintain switching yards in a reasonably level condition resulting in injury which might otherwise have been avoided is actionable negligence. 'The law does not require a railroad company to furnish machinery, tracks, and switches for their employés which are of the best character, or that are absolutely safe but the duty imposed is to use reasonable and ordinary care and diligence in providing safe machinery, tracks, and switches for the use of those engaged in its service. Railroad Co. v. Lonergan, 118 Ill. 48, 7 N.E. 55. But this rule, as the evidence tends to show, was not observed. The evidence seems to show that, as a general rule, railroad companies, at stations within switching limits, have their tracks filled up to the level of the ties, so that brakemen may walk over the ties in coupling cars without stumbling or falling. If this precaution had been observed, it is apparent appellee's foot, in attempting to couple the cars in question, would not have been caught under the ties, and he would not have stepped into the cattle guard and received the injury.' Ill. Cent. R. Co. v. Sanders, 166 Ill. 270, 278, 46 N.E. 799, 802. See, also, Lake Erie & W. R. Co. v. Morrissey, 177 Ill. 376, 52 N.E. 299; Donahue v. Boston & M. R. Co., 178 Mass. 251, 59 N.E. 663; ...