McFarlane v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 03 April 1924
• Docket Number: 18460.
• Citation: 224 P. 581,129 Wash. 230
• Court: Washington Supreme Court
• Parties: McFARLANE et al. v. CHICAGO, M. & ST. P. RY. CO. et al.

224 P. 581

129 Wash. 230

McFARLANE et al. v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 18460.

Supreme Court of Washington

April 3, 1924

Department 1.

Appeal from Superior Court, Pierce County; Askren, Judge.

Action by D. D. McFarlane and another against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Geo. W. Korte, of Seattle (H. S. Griggs, and L. R Bonneville, both of Tacoma, of counsel), for appellants.

Govnor Teats and Ralph Teats, both of Tacoma, for respondents.

MACKINTOSH J.

This case concerns a coffee pot and a freight train. The testimony as it must have been found by the jury showed that the respondent, Mrs. McFarlane, was employed by the appellant railway company under a written contract to furnish meals for the appellant's bridge gang crew, working at various points along the branch line of the railway known as the Tacoma & Eastern Railway. The bridge gang had been working at the station at Mineral, and, upon the completion of the work there, were ordered to work on a bridge near the station of Alder; this being the third station from Mineral towards Tacoma. The respondents, who had charge of the outfit cars under their contract, put their eight cars in shape to be attached to a freight train. One of these outfit cars consisted of the cook car in which there was a cook range with a flat top, with no guards around it, and which stood against the side of the car, leaving a passageway between it and some bins and shelves on the opposite side. The freight train was made up at Mineral and consisted of an engine and tender followed by a way freight car, 26 empty flat logging cars, 13 loaded cars, and the 8 outfit cars, ending up with the caboose--making a total of 49 cars.

About 11 o'clock in the morning this freight train started from Mineral for Tacoma. At that time the respondents were working around the cook car and had placed on the stove a coffee pot containing about three gallons of water, preparatory to making the coffee and preparing the noon meal for the bridge gang. The first stop, made at Park Junction resulted in a severe jolting, but no damage was done. The train then left Park Junction with the three gallons of boiling water in the coffee pot which had been placed at the back of the stove to keep it from getting any hotter, and proceeded to Elba, where a stop was made with the engine opposite the depot for the purpose of 'spotting' the way car next to the tender. This stop was made without jolting and jarring, and it was after this stop that the accident happened which is the basis of this suit.

The second movement of the train at Elba consisted of this: The train went forward some 1,400 feet for the purpose of picking up four or five loaded cars situated on the house track and to cut the train in two on account of the steep grade between Elba and the next station ahead, in order to take the forward portion with the empty freight cars and set them out at the next station, called Reliance. This done the engine would return and move the balance of the train. The second movement was also had for the purpose of clearing the highway, which crosses the railway company's tracks some 600 or 700 feet east of the Elba station. The track at Elba makes a curve of approximately 10 degrees, and it is therefore impossible for the engineer to see the rear end of a train as long as was this freight train, and he must receive his signals by relay. As we have noted, when the train stopped at Elba practically its whole length was opposite the depot and the cars across the highway. On making the second movement at Elba, the conductor stood near the highway so that he could see when the caboose had cleared it. He passed the signal on to one Hubbard, who stood a little distance to the west of the highway; Hubbard passed the signal to Weiland, and he to Duffy or to the engineer, Hendricks. The train started up and acquired a speed of from 5 to 8 miles an hour. The conductor gave a slow signal to stop when the caboose was not quite over the crossing. This signal was passed to Hubbard and from him to Weiland, who gave the same signal to the engineer, and the train stopped. When the caboose stopped it had just cleared the crossing. The highway at this point is approximately 40 feet in width.

On freight trains there is a slack action of approximately 10 inches between the ends of each two cars, or a slack action of the 49 cars in this train of approximately 40 feet. When this stop was made, the slack action resulted in a jolting and jarring that, according to the testimony of several experienced witnesses who were subjected to it, was of very extraordinary severity, even for a freight train. It resulted in the sliding of the coffee pot from the range and the spilling of its boiling contents over the leg of Mrs McFarlane, who had been thrown by the jar to the floor of the cook car, in the passageway between the stove and the bins and shelves, resulting in her serious injury, to recover damages for which this action was brought.

The complaint alleges several acts of negligence on the part of the railway company occasioning the injury, but all of these claims of negligence were withdrawn from the jury except one, which was, that the appellant Hendricks, the engineer of the train----

'with the knowledge of the make-up of the train negligently caused his engine in the front end of the train to so suddenly stop that the balance of the train slammed ahead with such terrific force and unnecessary violence that Mrs. McFarlane was thrown to the floor and a large coffee pot thrown across the range and the contents spilt upon her, scalding and burning her.'

We have therefore the question to consider, whether the evidence was sufficient to establish this act of negligence. It may be taken as conceded that the railway company owed to Mrs McFarlane not that degree of care which is owing to a passenger, but that which is due to what the courts have called 'a licensee for pay,' or 'with an interest,' to whom the railway company owes the exercise of ordinary care. Brown v. Sullivan, 71 Tex. 470, 10 S.W. 288; Campbell v. Harris, 4 Tex. Civ. App. 636, 23 S.W. 35; Tinkle v. Railway Co., 212 Mo. 445, 110 S.W. 1086; Etchison v. Lusk, 195 Mo.App. 188, 190 S.W. 345; Pugmire v. Railway Company, 33 Utah, 27, 92 P. 762, 13 L. R. A. (N. S.) 565, 126 Am. St. Rep. 805, 14 Ann. Cas. 384. It is to be noticed that this action is based on the common-law liability. Luby v. Industrial Insurance Commission, 112 Wash. 153, 191 P. 855. It is unquestionably true that there is more or less jarring and jolting in the stopping and starting of any freight train, on account of the slack, but, if proof was produced which showed that there was an extraordinary disturbance when this train stopped, the question arises as to whether that was the result of negligence or was the natural result of the ordinary operation of the train under all the circumstances. The appellant produced evidence tending to show that, on account of the curve, the sag in the track and the irregularities of the track and the fact that the rear end was on a heavy grade going up, when the train...