Ilwaco Ry. & Nav. Co. v. Hedrick

• Decision Date: 10 December 1890
• Citation: 25 P. 335,1 Wash. 446
• Court: Washington Supreme Court
• Parties: ILWACO RY. & NAV. CO. v. HEDRICK.

25 P. 335

1 Wash. 446

ILWACO RY. & NAV. CO. v. HEDRICK.

Supreme Court of Washington

December 10, 1890

Appeal from superior court, Pacific county.

Fulton Bros., for appellant.

Watson, Hume & Watson, for respondent.

ANDERS C.J.

This was an action by appellee, as administrator, to recover damages for the death of his son, a child between five and six years of age, alleged to have been caused by the negligence of appellant in not properly securing a turn-table situated upon its own premises, in an open area, near one of the principal streets, and close to the business portion, of the town of Ilwaco, in this state. It appears that the turn-table had been constructed but a short time previous to the accident to the child, and that, up to that time, it had not been used by appellant for the purpose for which it was designed. A considerable number of the children of the town had been in the habit of playing upon and revolving it previous to the accident to deceased. It was tied to a stake the day before, with a piece of rope, by one Hoffman, not in the employ of the railroad company, but was soon after untied by one of the children, and play resumed upon it. The managing agent of appellant, whose office and place of business was in close proximity to the turn-table, testified, in substance, that he also tied it, or caused it to be tied with a rope two days before the boy was injured; that the next day he noticed it was unfastened, and tied it with the same rope and in the same place; that it remained tied all that day; that he saw the children again on the table the evening before the accident; that they had untied it, and were revolving it and riding on it; that he drove them away, and told the men working on the track to keep them away from the turn-table, and that he tied it four times in all, with the same piece of rope. But that the table was ever tied or fastened at all, except by Hoffman, is disputed by other testimony in the case. The deceased child had never been to this turn-table before the time he was injured, but on that day he was sent by his mother on an errand to the store, about 300 yards distant from his home, and close to the turn-table. Returning from the store, he was attracted by the children at play upon the turn-table, and stopped and sat down to watch them on the abutment on or near the rails of the track connecting with the turn-table, in such a manner that his feet hung down on the side next to the turn-table. While in that position, the children turned the table so that his legs were caught between it and the abutment, and so injured that the flesh of both legs, from his knees down, was mangled and torn from the bones, from the effects of which he died three days afterwards. Upon the trial in the court below, the jury returned a verdict in favor of the plaintiff for the sum of $2,000. Judgment was entered upon the verdict, from which defendant appeals, and assigns the rulings of the court below in excluding certain testimony offered by defendant, and the refusal of the court to charge the jury as requested by it, as error.

To prove the character of the injury, and that the death of deceased was caused thereby, the plaintiff called as a witness a physician and surgeon, who, having stated, among other things, that he attended the child from the time of the accident until his death, and that he died from the injuries received at the turn-table, further testified-but whether on direct or cross-examination is not clear-that the child was a frail, weak child. On cross-examination, counsel for defendant asked the witness this question: "State whether or not, in your judgment if the child had been a healthy child, it would have survived the injury?" This question was objected to by counsel for plaintiff, on the ground that it was irrelevant and immaterial, and the objection was sustained by the court; and this ruling, appellant contends, was erroneous and prejudicial. It is claimed that the evidence sought to be elicited by the question was material in aiding the jury in arriving at plaintiff's damage. And in support of the proposition it is argued that a child so weak or feeble that he could not survive an injury that a healthy child would have survived, has a less expectancy of life than the ordinary child, and could not be expected to accumulate so much for his estate; and that an estate would be less damaged by the death of a weak child than by that of a healthy one. It is true that the measure of plaintiff's damage is the loss occasioned by the death of deceased, and that his health, mental and physical condition, and his expectancy of life, were proper subjects to be submitted to the jury for their consideration in estimating the amount of the damage sustained by the estate. But it does not follow that ...