Hobbs v. Great Northern Ry. Co.

• Decision Date: 30 July 1914
• Docket Number: 11947.
• Citation: 142 P. 20,80 Wash. 678
• Court: Washington Supreme Court
• Parties: HOBBS v. GREAT NORTHERN RY. CO.

142 P. 20

80 Wash. 678

HOBBS v. GREAT NORTHERN RY. CO.

No. 11947.

Supreme Court of Washington

July 30, 1914

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Mary A. Hobbs, as administratrix of the estate of Charles T. Hargraves, deceased, against the Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment in favor of defendant.

F. V. Brown and F. G. Dorety, both of Seattle, for appellant.

Arthur E. Griffin, of Seattle, for respondent.

MORRIS J.

Respondent brought her action under the federal Employers' Liability Act, to recover for the death of her minor son, who was a hostler's helper in appellant's employ in its Interbay yards, Seattle. The accident, resulting in the death of the minor, Charles Hargraves, happened about 7 a. m. November 16, 1912. The deceased was a member of the night crew, and had been assisting in preparing the engines to go out upon the road, by providing them with fuel, oil, sand and water. His work was ended at 7 o'clock, when the day crew came on duty. The last work he was engaged in concerning which there was no dispute was putting sand in an engine which then stood at the sandhouse. There is some dispute as to whether the sand was being placed in the dome of the engine or behind the fire box door, but this is immaterial as it is apparent that, whether the sand was being placed in the dome or in the rear of the cab, it would not call for deceased's presence at the place where he was when he received his injury. At this time engine 960 was standing on the roundhouse track and a switch engine was standing on a storehouse track, connecting with the roundhouse track, so close to the frog that it was not in the clear. Engine 960 was being prepared for passenger service, and at the proper time was supposed to back down to the depot, when the switch engine was to take its place and obtain its supply of sand and water. For some reason, upon which the evidence is in conflict, engine 960 moved forward a short distance until its pilot collided with the footboard at the rear of the switching engine. At the time of the collision, Hargraves was standing on the pilot of engine 960, and received injuries resulting in his death. It seems to be admitted that, because of the amount of steam from the engines, Hargraves' position upon the pilot of 960 could not be seen by the crew of either engine, and there is no contention that the engineer or the fireman of either engine knew he was on the pilot. As above stated, the last work of the deceased, prior to his getting upon the pilot, was assisting in filling up the sand box. The only positive testimony is that, after completing this work, Hargraves pulled a plank, which connected the sandhouse platform with the running board of the engine upon which they were at work, back to the platform, and was standing on the platform, while another hostler's helper who had been assisting him went to the water tank near by to perform other duties. The next appearance of Hargraves was on the ground near to the pilot of engine 960. How he got there or what he was doing there no one seems to know. He was then seen to step upon the pilot of engine 960 as it moved forward, facing the rear and then turning around towards the roundhouse. No one knows why he stepped upon the pilot, nor do any of those who saw him testify that he was doing anything when the engine moved forward Some of those standing saw the probability of a collision with the switch engine and shouted a warning, to which he paid no attention, either not hearing or not heeding it. So far as we can discover from this record, Hargraves had no duties to perform which would take him upon the pilot of the engine at this time, and the reason for his presence there is a matter of conjecture. It is shown that there was a rule posted in the round house forbidding employés to ride on engine pilots, and that in addition to this rule Hargraves, who had been in the employ of the company for only about a month, had on two occasions been told by the hostler not to ride on the pilot. If the deceased was at work, at the time he received his injury, in the performance of some required duty, this verdict must be sustained. With that view we have carefully examined the record, to ascertain, if possible, what the deceased was doing upon the pilot, or what he purposed to do when he went there; and we can find nothing which refutes the positive testimony that he had no duties to perform which would take him there, or of those eyewitnesses to his position on the pilot that he was not performing any at the time. One of the witnesses for the plaintiff gives it as his opinion, or, as he puts it, 'my idea,' that after the plank used in filling the sand box was taken down, Hargraves walked along the running board to the front of the engine and then stepped down to the pilot, supporting his theory by saying he did not have the time to get down to the ground and walk around to the front end of the engine. But this is only speculation, and is refuted by the testimony of a number of witnesses who saw him step from the ground to the pilot as the engine moved forward. Another theory offered by respondent is that deceased was on the pilot for the purpose of oiling a relief valve. Neither of these theories is supported by any testimony. They are nothing more than conjectures as to what he might have been doing. On the other hand, the testimony of all those who saw Hargraves just before he received his injury is, not only that he was standing on the ground when engine 960 started to move, and that he stepped upon the pilot from the ground, but that he had no oil can or other appliance in his hand. This is supported by testimony that it was no part of his duty, or of the hostler's crew, to oil the relief valve, and that he had no access to the lubricating oil. If there was any conflicting testimony upon this point, the jury might have disregarded this testimony as we have referred to it, and found otherwise. But respondent offers no conflicting testimony; she contents herself with testimony that is purely speculative, and points out only what he might have been doing. We do not think the jury, without supporting testimony, should be permitted to speculate as to what Hargraves might have been doing, when the testimony of all the eyewitnesses points clearly to what he was doing; nor that they should theorize as to how he reached his position on the pilot, when there is no conflict on that point. Long v. McCabe & Hamilton, 52 Wash. 422, 100 P. 1016; Scarpelli v. Wash. Water Power Co., 63 Wash. 18, 114 P. 870.

Appellant also offers testimony to the effect that it would be impossible to oil a relief valve of the type on engine 960 from the place where deceased stood, or with the engine standing still. The deceased was 5 feet 8 inches tall. The relief valve upon the engine was 8 feet from where he stood. Appellant's testimony is all to the effect that the relief valve could not be reached by Hargraves from the position in which he stood. This is not only the evidence of appellant, but a locomotive engineer, introduced by respondent for the purpose of giving expert testimony, admits that the relief valve on this engine could not be reached by a person standing in the position of Hargraves. The only testimony we can find as to oiling relief valves from the pilot is that of one witness, who says it could be done by standing on the pilot beam and leaning over and holding onto a brace. But the evidence shows that Hargraves was standing on the footboard and not on the pilot beam. Had he been on the pilot beam, he would not have been injured, as the impact of the collision was very slight, resulting in no appreciable damage to either engine. Another witness testified that this type of valve could be oiled with the engine standing still, by taking a wrench and turning the valve up, putting a stick under the cap of the steam chest, pushing the plunger down, and pouring in oil. This testimony is all speculative so far as it furnishes any guide to what Hargraves was doing, and is in direct conflict with the testimony of all those who were present at the time and testified to what he was actually doing at the time. It might have been done in the manner described by this witness, but there is no evidence that Hargraves was making any such attempt. He had neither oil can, wrench, nor stick, and in addition had changed his position so that his back was toward the relief valve. Counsel for respondent in his argument asks, 'If he was not oiling the engine, why was he there?' As we view the law, it is incumbent upon respondent to show what Hargraves was doing, and that at the time of his injury he was in the performance of some duty owing to the appellant, and not for appellant to make some affirmative showing to relieve it from liability. From the record, the only possible answer to the question is that he was not oiling the relief valve, and his purpose in stepping upon the pilot is a pure guess.

After the injury to Hargraves he was taken to the...