Jennings v. Tacoma Ry. & Motor Co.

• Decision Date: 15 November 1893
• Citation: 34 P. 937,7 Wash. 275
• Court: Washington Supreme Court
• Parties: JENNINGS v. TACOMA RAILWAY & MOTOR CO.

34 P. 937

7 Wash. 275

JENNINGS v. TACOMA RAILWAY & MOTOR CO.

Supreme Court of Washington

November 15, 1893

Appeal from superior court, Pierce county; William H. Pritchard Judge.

Action by George A. Jennings against the Tacoma Railway & Motor Company. From a judgment for plaintiff, defendant appeals. Reversed.

Crowley & Sullivan, for appellant.

O'Brien & Robertson, for respondent.

DUNBAR C.J.

This is an action for damages, brought by the respondent, George A Jennings, as plaintiff, against the Tacoma Railway & Motor Company, in the city of Tacoma. Respondent, at the time of the accident which caused his injury, was working for appellant as a conductor. On the 12th day of November, 1891 while engaged in the duty of conductor on what is known as the "dummy" or "grip" car, he went into the power house of the company to push a trail car from the power house out and along the track which went through the doorway. This car, after being pushed out, was to be attached to the dummy car, and run along the line of the cable railway. There was no way to attach the power to the trail car to get it out of the power house, and it had to always be pushed out by hand. According to respondent's testimony the track outward was on a slightly upward incline, and it had to be pushed rapidly to force it far enough on the curved track to attach it to the dummy. The doorway was about 8 feet 1 inch in width, and the car which was pushed out was about 7 1/2 feet in width, so that it would be seen that there was only about 3 1/2 inches on each side between the car and the walls of the doorway, or pier, which was about 8 feet wide. There was an open space under the track, so that the car had to be pushed out by taking hold of the side of it; and a plank was run along the side for the men to stand on while they were pushing it. The usual practice of the men was to push the car as rapidly as possible until they came to this pier, and then let go, pass around the pier, and seize the car again on the other side. The respondent had been in the employ of the company for five days as conductor but this was the first day he had been on that line, and the first day he had attempted to run out the trail car. In pushing it out he took hold of one of the uprights on the side of the car, and in pushing failed to let go when he came to the doorway, and was caught by the car and the walls of the pier, and was badly injured. He brought this action for damages against the company, setting up the facts, alleging negligence of the company in the construction of its track and in not notifying him of the danger; alleging his damages to be $15,000. The company answered, denying negligence on their part, and alleged contributory negligence on the part of plaintiff. On the conclusion of plaintiff's testimony the appellant moved the court for a nonsuit, which motion was denied, and duly excepted to. The trial was then had, which resulted in a verdict in favor of plaintiff for $2,500, and a motion for a new trial was made and refused, and the appellant br...