Morgan v. Northern Pac. Ry. Co.

• Decision Date: 20 May 1912
• Docket Number: 2,099.
• Citation: 196 F. 449
• Parties: MORGAN et al. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F. 449

MORGAN et al. v. NORTHERN PAC. RY. CO.

No. 2,099.

United States Court of Appeals, Ninth Circuit.

May 20, 1912

This was an action by the widow and minor children of Charles Morgan, who was killed by one of the railway trains of the defendant in error. The accident occurred about 11 o'clock on the night of January 29, 1910, between South Tacoma and Tacoma, in the state of Washington, between which points the railroad company had a double track. Morgan resided on Junette street, in the city of Tacoma, and according to the uncontradicted evidence, to reach his home the customary way and the only practical method of travel was to take the Center street or Jefferson avenue car line to the terminus of the line, and from there to walk to his home by a regular path which led from the end of the street car line directly to the railway tracks of the defendant in error. It was the custom, and had been for many years, of the people who lived in the neighborhood where Morgan did, to take the path referred to to the roadway of the defendant in error and then follow that down to another trail which led to their homes. The evidence shows without conflict that on an average from 40 to 50 people, including Morgan, had been accustomed to use that route day and night for a great many years, and that the defendant railway company never objected thereto. Morgan was using that route at the time that he was killed and must therefore be regarded as a licensee and not as a trespasser. The evidence shows without conflict that the custom of the railway company was to send its trains into the city of Tacoma over the east-bound track and to send its trains going out of the city over the west-bound track, but that on the night in question the train that killed Morgan was directed to take the west-bound track at South Tacoma and was on that track at the time of the accident. It further appears without conflict in the evidence that the night in question was very dark and was windy, and it had been raining; that with Morgan there got off of the street car a Mrs. Doty and her daughter, who were neighbors of the deceased; and that the three started for their respective homes together and along the route that has been indicated. The record shows that 814 feet from where the trail from the end of the street car line strikes the railroad track there is a switch leading to the Willamette Casket building, and that from where that switch starts to the west end of the building is about 300 feet, and from the west end of the building to the Pine street crossing at South Tacoma is about 1,200 feet, and that at the Pine street crossing there is a two-degree curve in the railroad tracks, and that from the curve to the first trail mentioned the railroad tracks are practically straight. Morgan being dead, Mrs. Doty and her daughter were the only witnesses, so far as appears, to the accident, unless it be those who were upon the engine.

The locomotive engineer was called as a witness on behalf of the plaintiffs, and testified as follows:

'I am a locomotive engineer in the employ of the Northern Pacific Railway Company and have been for the past 12 years. In January of last year, my run was between Tacoma and Centralia. The fireman was Holm. On the night of the 29th of January, 1910, I was coming in from Centralia on a freight train. The train consisted of three cars and a caboose. At South Tacoma, my orders were to use the west-bound main line between South Tacoma and Tacoma. It has not been the custom in coming in to use the west-bound track. Between South Tacoma and Tacoma, it is about level, and I was running about 20 miles per hour, and I made no stops between South Tacoma and Pacific avenue.'

Cross-examination: 'I first learned that I had struck Morgan the next morning. The west-bound track coming in is the track next to the casket factory, the left-hand track coming the way I was coming. That is the only way that we can get in when the other track is blocked. The engine was running front end first.'

The fireman was not called as a witness.

Mrs. Doty testified, among other things, as follows: 'My daughter and I got off the car at that point (Jefferson avenue), and Mr. Morgan waited at the path for us to come up with him, and so we all walked together. We took the path leading from the car line to the Northern Pacific tracks. It was about 11 o'clock when we got off the car. The night was very dark and cloudy. It had been raining in the city, but it was not raining when we walked up the track. I could not see more than about 10 feet, I guess; it was very dark. * * * My daughter was on the outside, I was next, and Mr. Morgan was on the outer side in the west track, for a ways.'

The witness testified that Morgan first walked between the two tracks, her daughter walking outside of the tracks and a little in advance, and the witness a little in the rear of Morgan, and that Morgan later stepped over into the middle of the west track. 'We were not talking,' said the witness, 'and being so dark, and I was not much acquainted with him, only knew him as a neighbor, and we had nothing to say, and just walked along quietly, when I happened to look up, just happened to look, and saw a dim light, and I knew that it was a moving light, and I remarked to Mr. Morgan, 'Mr. Morgan, you had better get off the track.' and that moment or second my daughter turned around to me in her path and says, 'Ma, you know the train don't come down this track,, and she traveled the track so much more than I have that she knew positively the train would not come down that track because it never had, and while she spoke the train rushed by and Mr. Morgan was struck. When the train rushed by, I was at about the south end of the casket factory, the farthest end from Jefferson avenue car line.'

The witness further testified that she was sure that the train never made any sound of any sort. Being asked whether it had a headlight, the witness answered:

'It had a light. I can swear it had a light. It was not a good light, because the lights that were usually on the trains scare me.

'Q. Did you see any flash of light along the rail? A. No flash at all. I have seen headlights of engines many times. This light might be as large as one of these globes (indicating electric light globes in courtroom), but it was dim; it was not bright; it did not flare up like a light of that kind ought to. Of course, it might be bigger than an electric light globe, but I should judge something like it. The train did not sound any bell. My daughter, as the train flew by, went down the embankment. I have seen trains running by here right along. This train was going awfully fast; faster than any train I ever saw go.'

On cross-examination the witness testified that at the time Morgan was struck he was walking in the middle of the track; that she did not hear the train coming, but saw the moving light first; that the train was already around the curve when she first saw it. 'It was on a straight line,' said the witness. 'It was a very bad night. The wind was blowing some. I was walking most of the time with my head down, just as one naturally would. It was not windy enough for me to say it was a very windy night. It was a very dark night. It had rained in the city a little. * * * When I saw that light, I took it to be the light of the train and thought the engine was coming on that track. I remarked to Mr. Morgan, 'Better get off the track.' My daughter was ahead of me at the time, just a little in advance of me. I do not remember whether he said anything or not. If he did, I did not hear him. My daughter turned around and said I know the trains did not come down that track.

'Q. Did you say anything in reply to your daughter? A. I didn't have time, sir.

'Q. Just about that time? A. The train flew by. The train was coming toward me. The light was about the size around of one of these electric globes here in the room. It was a very dim light.'

Myrtle Doty, the daughter, testified, among other things, as follows:

'We all three of us walked in the track as we crossed the switch. Just as we

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