Matson v. Port Townsend Southern R. Co.

• Citation: 37 P. 705,9 Wash. 449
• Parties: MATSON v. PORT TOWNSEND SOUTHERN R. CO.
• Decision Date: 04 August 1894
• Court: United States State Supreme Court of Washington

37 P. 705

9 Wash. 449

MATSON v. PORT TOWNSEND SOUTHERN R. CO.

Supreme Court of Washington

August 4, 1894

Appeal from superior court, Jefferson county; R. A. Ballinger Judge.

Action by Edgar Matson, by Andrew Matson, guardian ad litem, against the Port Townsend Southern Railroad Company, for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Andrew F. Burleigh, for appellant.

F. C Robertson and R. W. Jennings (D. J. Crowley, of counsel), for respondent.

HOYT J.

Plaintiff was a boy of about 10 years of age. He was fishing in a creek near a bridge or trestle upon which the trains of the appellant crossed. While thus engaged, a train consisting of logging cars loaded with logs, some flat cars, and a passenger coach, came along, and, just before it reached the creek crossing, one of the logs fell from the train. Upon seeing this, plaintiff attempted to run away from the vicinity of the bridge, and while he was so doing, the train having reached the crossing, another log fell therefrom, and struck him, breaking his leg and inflicting other injuries. To recover for the damages flowing therefrom, this action was brought, and resulted in a judgment for the plaintiff, from which this appeal has been prosecuted.

The place where the accident happened was upon a portion of what had been the farm of the plaintiff's father, and was at a distance of about a quarter of a mile from his house. In the course of the trial it became a contested question as to whether or not the appellant had a right of way across said farm, and, if it did have, as to whether or not the plaintiff was within the limits thereof at the time the log struck him. The undisputed facts showed that the father, his wife joining him, had made a contract with the railroad company by which in consideration of the payment of one dollar and of the expenses incident to the execution of the deed, it was agreed that a right of way 100 feet in width across the premises should be conveyed to the appellant if it should construct and operate its road across the same within a period of two years. It further appeared that Andrew Matson, the father, and his wife, had brought an action in the superior court, in which they alleged and sought to prove that the railroad company had not complied with its contract as to the time when said road should be constructed and operated; that upon the trial in that action the issue made upon this allegation was found against the plaintiffs, and a decree was entered therein to the effect that upon the payment of one dollar, and the expenses incident to its execution, the appellant should be entitled to a deed of warranty, conveying to it title to a right of way 100 feet wide, being 50 feet on each side of the center of its track, across the premises of the plaintiffs. It was contended on the part of the respondent that notwithstanding this decree the appellant had no title to the right of way, for the reason that it had not paid said sum of one dollar, nor the expenses incident to the preparation of the deed. This contention might be sustained, so far as the technical legal title was concerned, but no further. It is evident from the language of the contract, and from the circumstances surrounding its execution, that the money to be paid was not a substantial part of the consideration for the right of way. The substantial consideration was the construction and operation of the railroad, and, it having been found that this part of the consideration had been fully paid, the title had been substantially earned. This substantial title could not be defeated, or its possession thereunder disturbed or in any manner affected, by the fact that the stipulated dollar had not been paid, so as to entitle appellant to a conveyance of the legal title.

The question as to the location of the plaintiff at the time he was injured was one of fact, and the finding of the jury to the effect that he was more than 50 feet from the center line...