Irish v. Northern P. R. Co.

• Citation: 4 Wash. 48,29 P. 845
• Parties: IRISH v. NORTHERN PAC. R. CO.
• Decision Date: 16 March 1892
• Court: Washington Supreme Court

29 P. 845

4 Wash. 48

IRISH v. NORTHERN PAC. R. CO.

Supreme Court of Washington

March 16, 1892

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

Action by William Irish against the Northern Pacific Railroad Company for damages for injuries caused by negligence of defendant. Judgment for defendant Plaintiff appeals. Reversed.

Marshall K. Snell and Stephen O'Brien for appellant.

Mitchell, Ashton & Chapman, for respondent.

HOYT J.

This action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the respondent in the operation of a certain railroad train. The court below sustained the demurrer to the complaint, and from the judgment of dismissal rendered thereon plaintiff has brought the case here for review. The allegations of the complaint, so far as they are necessary for the consideration of the questions raised by this appeal are as follows: "At that time it was the custom of the railroad company to run its trains from Wilkeson to the switch lying westwardly about one half mile, then switch off and run to Carbonado upon another branch of railroad belonging to and operated by the defendant company, and returning thence to the said switch, would once more place itself upon the line running to South Prairie, and then on to Tacoma. That, while stopping at said switch, it was the practice of the officers and employes of said company employed upon said train to permit and request intending passengers to board the cars; and this practice had become a custom among the people of Wilkeson, and was well known. That plaintiff knew this practice and custom; so, when he found the train moving away from Wilkeson station without him, he shouldered his bundle, and walked down the railroad to the switch aforesaid, and there awaited the return of the train from Carbonado. That in due time the train returned from Carbonado, and approached said switch, the engine and tender coming first, crossing the switch, and running up a short distance towards Wilkeson station; thence running westwardly upon the line of road towards South Prairie, and stopping. The passenger car-the only car-came after, propelled by its own gravity, and in like manner ran over said switch, and a short distance towards Wilkeson, and stopped. That when the car stopped, the conductor of said train, being an employe of said defendant company, and the brakeman of said train, also an employe of said defendant, appeared upon the rear platform of said car. That plaintiff at that time was standing on a steep bank forming the bed of the railroad, about ten feet away from the rails and to the side thereof, where he had gone to be out of the way when said train came down from Carbonado and switched off to the line to South Prairie. That when the conductor upon said car saw the plaintiff, who expressed his desire of getting on board said car, the said conductor, being an employe of said defendant company, beckoned to the plaintiff to come to the rear of the car, and directed him to come between the rails of said railroad and to the rear end of said car, and by his words and gestures indicated to plaintiff that he should place his baggage upon the platform of said car at a point immediately above the couplers and between the upright iron guards at the end of the platform and a part of said car; said conductor saying to said plaintiff, in order to induce him to make haste, 'This way, now; hurry up,' pointing with his hands where he desired plaintiff to come to, and place his baggage on the rear platform, as above stated. That plaintiff, in obedience to the instruction of said conductor, and following the commands given by him as to the manner in which he should place his baggage on board said car, believing himself to be obliged to obey the directions of the conductor in getting on said car, fully believing that said conductor had full control of all the movements of said train, and that no movement of said car would be made without the orders and directions of said conductor, and for the further reason that the bank upon which the car stopped was so steep, and the steps of the platform so slippery from frost, that plaintiff could not put his bundle on the car by the steps of the platform, and fully believing that it would be safe to follow the instructions of the conductor as aforesaid, and neither hearing nor seeing anything that would indicate that the engine was moving, did go upon the track of said railroad with his bundle of baggage upon his shoulder, and did approach the rear platform of said car in the manner indicated and directed by the said conductor, and attempted to place his bundle upon said platform, in the doing of which said conductor assisted him, by taking hold of his bundle. That while standing in this position, the car of which said platform was a part, through the negligence and carelessness of...