Herrman v. Great Northern Ry. Co.

• Decision Date: 04 March 1902
• Citation: 68 P. 82,27 Wash. 472
• Court: Washington Supreme Court
• Parties: HERRMAN v. GREAT NORTHERN RY. CO. [1]

68 P. 82

27 Wash. 472

HERRMAN v. GREAT NORTHERN RY. CO. ^[1]

Supreme Court of Washington

March 4, 1902

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by John Herrman against the Great Northern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Mount & Merritt and Hand, Taylor & Graves, for appellant.

Will H Thompson and M. J. Gordon, for respondent.

HADLEY J.

This is an action for damages brought by appellant against respondent. The complaint alleges that the respondent is in the possession of a certain depot and depot grounds within the city of Spokane, which it operates and controls, on the line of its railroad passing through said city; that the respondent, for its own convenience, and for the convenience of its passengers, did, on the 13th day of December, 1898 maintain a sidewalk upon its said line of road, and in front of said depot; that on said date the respondent negligently and carelessly permitted snow and ice to accumulate and remain upon said walk, and in front of said depot, and carelessly and negligently permitted its engines to exhaust steam upon said snow and ice, and thereby caused said sidewalk to become slippery and icy on top of the snow, and dangerous to the public and persons having business with respondent at that place; that at about the hour of 6 o'clock in the evening of said day appellant, desiring to travel upon respondent's regular passenger train going east, went to said depot for the purpose of purchasing a ticket for passage upon said train, and that upon inquiry he was informed by the agent in charge of the depot that the train would not leave until the next morning, and thereupon he purchased a ticket for passage over respondent's road from Spokane to Milan, Wash., and at once left the depot for the purpose of going to his lodging in the city of Spokane; that while walking upon said sidewalk on the depot grounds in a careful manner, being compelled to walk upon the snow and ice which had accumulated as aforesaid, he without any fault of his own, slipped upon the snow and ice, and was violently thrown to the ground, falling in such a manner as to sprain and bruise the ankle of his left leg and break the bones thereof, by reason whereof he was unable to stand upon his feet, and it became necessary that he should be taken from said place to the hospital in Spokane for treatment, which was done; that the said injuries were and are permanent, and by reason thereof appellant will be permanently crippled for life; that he was confined to his room in the hospital for about 35 days, and has suffered, and now suffers, great physical and mental pain by reason of said injuries, and is thereby permanently disfigured and deprived of the power he would have had but for said injuries to engage in profitable employment during the remainder of his life; wherefore he asks recovery in damages. The answer of respondent denies the allegations of the complaint, and further affirmatively pleads contributory negligence on the part of appellant, and alleges that appellant was a trespasser upon the property described in the complaint, and had no right to be thereon at the time mentioned in the complaint; that he was not invited by the respondent to pass along the place where he claims to have been injured, and that respondent owned him no duty whatever in respect to any of the matters alleged in the complaint; that whatever risk there may have been or which attended his passing along the premises described in the complaint, was a risk which the plaintiff well knew, and could have, by the exercise of ordinary care and caution, avoided. The cause was tried before a jury, resulting in a verdict for respondent. Appellant moved for a new trial, which was denied, and judgment was thereupon entered that appellant shall take nothing by his said action, and that respondent shall recover its costs. From said judgment this appeal was taken.

Respondent moves to strike the statement of facts, for the reason, as urged, that the court has settled two separate and complete statements which are inconsistent and conflicting with each other. From the record it appears that appellant duly filed a proposed statement. The evidence is not set out in the form of questions and answers as taken by the stenographer, but is set forth in narrative form, and purports to contain all the material facts, matters, and proceedings which occurred at the trial. In due time respondent filed what is denominated an amended statement of facts, proposed by respondent as a substitute for the original statement proposed by appellant. In the latter proposed statement the evidence is also set out in narrative form, and purports to be a complete statement of all the evidence, and of all that occurred at the trial. The certificate of the court is to the effect that the matters and proceedings embodied in the appellant's proposed statement, and in the respondent's proposed amended statement, combined, are matters and proceedings which occurred in the cause, and they are made a part of the record. The court, in its certificate, also refers to the combined statements as 'the foregoing statement,' thus treating them as a unit, and as comprising one statement in the case. Respondent contends that appellant's proposed statement is distorted, garbled, and incomplete; and appellant makes a like charge against the amended statement proposed by respondent. It is manifest that this court has no means of determining the accuracy of the respective contentions, and must rely upon the certificate of the trial court. That certificate recites, in effect, that the contents of each of the proposed statements truthful accounts of matters which occurred at the trial, and both are therefore approved and made a part of the record. It was doubtless the court's view that omissions in one proposed statement were supplied by the other. In any event, respondent's motion to strike the whole statement as settled seems to us inconsistent, since the motion includes respondent's own proposed amended statement, submitted by itself for certification, which purports to be complete in itself, and which the court has made a part of the record. Moreover, we are unable to find in the record any objection made in the court below to the signing of the court's certificate as it was signed, making both proposed statements a part of the record. For the foregoing reasons we must treat that which the court has made a part of the record as constituting the statement of facts for the case, and the motion to strike is denied.

The assignments of error are based upon the court's instructions, and upon its refusal to instruct as requested by appellant. Counsel differ materially as to the law applicable to the facts in issue in this case. The testimony discloses that the appellant is a farmer, who resides in the country, 17 miles distant from Spokane. On the day he received his injuries he drove a team of horses from his home to Spokane, expecting to attend to some business there, attend a lodge in Spokane that night, and the next day drive with his team from Spokane to Milan, Wash., where he desired to attend to some business. On the way to Spokane one of his horses became lame, and upon reaching there he took his team to a stable and decided to leave them there and go to Milan the next day by the respondent's railroad. He inquired of persons at the stable at what time the train would leave for Milan, but they were unable to inform him. He then went to the depot to ascertain the time the train would leave. He inquired of the agent in charge at the depot, who informed him that the train would leave about 8 o'clock the next morning. He then asked the agent for a ticket to Milan, and purchased from him at that time a round-trip ticket from Spokane to Milan. He immediately passed out of the depot building, and was returning by way of the sidewalk before mentioned when he received the injuries aforesaid. The evidence also disclosed that the depot and grounds thereto attached did not belong to the respondent company, but did belong to a corporation known as the 'Union Depot Company of Spokane Falls.' The property of the Union Depot Company consisted of the depot, with platform and walks, and some tracks and side tracks. At the time appellant received his injuries the property of the Union Depot Company was in charge of a receiver acting under direction of the United States circuit court. By arrangement between the respondent company and said receiver, the passenger trains of respondent arrived and departed from said depot, and the passengers, baggage, and express matter of said trains at Spokane were received and discharged at said depot. The agent in charge, and who sold appellant his ticket, was employed by the receiver, and sold tickets for passage over respondent's line, and also over other lines using the same depot, as well as over all other railway lines in the country. No other agent was stationed at said depot to sell tickets over respondent's line. The evidence is conflicting as to the condition of the sidewalk at the time. Respondent's witnesses testified that it was kept clear of snow and ice, while appellant's testimony is supported by that of other witnesses. We will not inquire into this conflict of testimony, but will leave that to the jury, since it belongs to them to determine that matter. The verdict should not be disturbed unless it appears that the court has submitted the case to the jury under instructions which embody an erroneous view of the law.

It is the contention of respondent that it was not in possession or control of the depot premises at the time; that the ownership of the premises was in another company, and...