Northern P. R. Co. v. Whalen

• Decision Date: 30 January 1888
• Citation: 3 Wash.Terr. 452,17 P. 890
• Parties: NORTHERN PAC. R. CO. v. WHALEN ET AL.
• Court: Washington Supreme Court

17 P. 890

3 Wash.Terr. 452

NORTHERN PAC. R. CO. v. WHALEN ET AL.

Supreme Court of Territory of Washington

January 30, 1888

Appeal from district court, Kittitas county; GEORGE TURNER, Judge.

Complaint by the Northern Pacific Railroad Company, plaintiff, against W. Whalen, C.J. Brooks, and May Imbrie, doing business under the firm name of C.J. Brooks & Co.; M. Becker, Louis Shang and Jacob Dorr, doing business under the firm name of M Becker & Co.; E. Grunden, William Voen Hollen, and O Peterson, doing business under the firm name of Grunden, Voen Hollen & Co.; Joseph Cleary and Josh Cleary, doing business under the firm name of Joseph Cleary & Co.; John Michaels and J. Bates, doing business under the firm name of Michaels &amp Bates; _____ Root and _____ Lewis, doing business under the firm name of Root & Lewis; _____ Nelson and _____ Keith, doing business under the firm name of Nelson & Keith; J. Emery and _____ Atkins, doing business under the firm name of Emery & Atkins; A. P. Holt and _____ Olney, doing business under the firm name of Holt & Olney; _____ Durr and _____ Sharp, doing business under the firm name of Durr & Sharp; _____ Olsen and _____ Pierson; John Tassier; Peter Holt; B. Richardson; Jacob Nauderbauer; O. R. Anderson; J. J. Imbrie; Andy Rosenburg, H. Y. Anderson; J. P. McCarthy; D. Jake; J. W. Arthur; W. Terrance; George W. Canfield; John Cleary; _____ Moore; J. B. Tassier; Mike Ferrell; E. Dodge; S. Settle; W. Haupton; J. B. Starr; John P. Bradley; May Imbrie; John Blomquist and _____ Nelson; J. S. Pysart; J. B. Van Olstine; and J. M. Shelton,-board of county commissioners of Kittitas county, defendants, and keepers of saloons and gambling-houses along the line of plaintiff's road,-praying a temporary, and on the hearing a permanent, injunction to restrain defendant the board of county commissioners from issuing licenses to the other defendants to retail spirituous liquors, and the other defendants from retailing such liquors, thereby making drunk plaintiff's employes, and incapacitating them from doing plaintiff's work. Judgment for defendants on demurrer. Plaintiff appeals.

Mitchell, Ashton & Chapman, for appellant.

H. J. Snively, for appellees.

LANGFORD, J.

This case comes before us upon the single question of whether the complaint states a cause of action. The complaint is as follows:

" To the Hon. George Turner, Judge of the above-named Court:

"For supplemental and second amended complaint, plaintiff avers-

"(1) That it is a corporation duly created and incorporated under and by virtue of an act of congress dated July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound,' and the acts supplementary and amendatory thereof.

"(2) That, under and by virtue of said acts of congress, plaintiff is authorized and empowered to construct and maintain and operate a railroad and telegraph line from Lake Superior to Puget sound.

"(3) That, under and by virtue of said acts of congress, the said plaintiff is now constructing its said railroad line through Kittitas county, and through and over what is known as the Cascade mountains, at a place called 'Stampede Pass,' and that at the place where it is constructing the said road over the mountains, and in Kittitas county, is a village called 'Tunnel City;' that said Tunnel City is located at and adjoining the tunnel now being constructed, under and by virtue of said acts of congress, through said Cascade range of mountains.

"(4) That said railroad company has now in its employ, in constructing its road, as aforesaid, at Tunnel City, in Kittitas county, four thousand employes; and that, in the construction of its road as aforesaid, it is necessary that said plaintiff, and the contractors of said plaintiff, should use high explosives, such as dynamite, and machinery run by electricity, steam, and compressed air; and in the use of said explosives and running of said machinery, and in the construction of said road, it requires sober, skilled labor.

"(5) That the said defendants, except the board of county commissioners, at said tunnel, and on the public roads near thereto, and along the line of the road now being constructed by said plaintiff, for several months past have been running retail drinking and lager-beer saloons, and selling spirituous, malt, and fermented liquors to the said employes of said plaintiff, and that the said sales of said liquors to said employes has frequently and continuously caused drunkenness of said employes, and that the said drunkenness incapacitated the said employes so that they were not able to perform the labor assigned to them, and the labor they were expected to do, and for which they were employed; and that the said drunkenness increased the risk and danger incident to the necessary use of the said explosives and machinery, and increased the danger to the employes employed in constructing the road, as aforesaid, and to the officers and agents of said plaintiff, and has caused and is causing many of said employes to quit the employment thereof. That, during the four months last past, the said railroad company has employed and transported, in and upon said work, about eight thonsand men, at an average expense of ten dollars for each man. That, about four thousand of said men, thus employed, for the reasons aforesaid, and to the great and irreparable damage of said railroad company, after being transported in, as aforesaid, quit and left the work of said plaintiff. That said plaintiff, had it not been for the sale of said liquor aforesaid, and drunkenness caused thereby, would have been able to complete, and would have completed, its road from Ellensburg to Tacoma during the present year; but, on account of the sales of said liquor aforesaid to said employes, the plaintiff was not and is not able to obtain and retain on said work sufficient employes to complete said road during said time. That plaintiff will be compelled to continue the construction of said road during the winter season. That a large portion of said work is of such a character that it cannot be performed during the winter season without extraordinary expense and delay; and that the extra expense, caused by the sale of said liquor as aforesaid, necessary to the completion of said road during the winter of 1886 and 1887, over that necessary to complete the road during the present summer and fall, all of which plaintiff could have done had it not been for said saloons and said sales of intoxicating liquors aforesaid, will exceed one hundred thousand dollars, and that said plaintiff has been damaged in said sum by said sale of liquors and intoxication caused thereby. That the delay in the completion of said road for said time, and damages incident thereto, in addition to said one hundred thousand dollars, will cause the said plaintiff damage and loss of the use of said road exceeding in amount one hundred thousand dollars. That said saloons have been so conducted, and drunkenness and gambling permitted and carried on to such extent, that they, the said saloons, have been for months, and are now, public nuisances, and also a private nuisance in so far as the said plaintiff is concerned. That the superintendents, officers, and families thereof are seriously discomfited, injured, and annoyed by said nuisance; and that the lives of the said officers, agents, and employes, and the property of said plaintiff has been diminished and injured in value in consequence of said sales of liquors, and drunkenness caused thereby; and that the said plaintiff, by said saloons, and the sale of intoxicating liquor therein to said employes, and said drunkenness and said gambling, has sustained great and irreparable injury; and, if said saloons are allowed to run along the line of said road in future, will continue to sustain injuries in all the matters aforesaid; and that said sales of intoxicating liquors, and the said drunkenness caused thereby, will cause in the future all the damage and injury, discomfiture, and annoyance that it has caused in the past. That the said defendants are insolvent, and not

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