Northern P. R. Co. v. Hess

• Court: United States State Supreme Court of Washington
• Citation: 2 Wash. 383,26 P. 866
• Parties: NORTHERN PAC. R. CO. v. HESS ET AL.
• Decision Date: 29 May 1891

26 P. 866

2 Wash. 383

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

Supreme Court of Washington

May 29, 1891

Appeal from superior court, Lincoln county.

ANDERS, C.J., and STILES, J., dissenting.

[2 Wash. 384] Mitchell, Ashton & Chapman and N. T. Caton, for appellant.

Blevins & Neal, for appellees.

[2 Wash. 385] SCOTT, J.

Appellee was a passenger from St. Paul to Sprague on one of appellant's cars, which was one of a class [26 P. 867] known as "free emigrant cars;" and during the passage she was injured by the falling of an upper berth while away from her seat, and standing by the stove. Just before she left her seat at that particular time, some person passed [2 Wash. 386] through the car and raised the upper berth nearest to the stove, but did not push it up far enough so that the fastenings caught or locked. The berth might remain in such a position temporarily, but would be in constant danger of falling. The fastenings of such berths were so arranged as to be further secured by locking with a padlock. As to whether it was customary to keep them so locked when raised, was not shown, but this one was not locked in this way at the time. The conductor testified, however, that if the berth had been pushed up high enough for the fastening to catch it could not have fallen. Appellee testified that she left her seat and went to the stove, and that while standing there the train started, giving a quick jerk; that she put out her hand and caught hold of the post by one of the berths, when the upper berth came down and caught two of her fingers and crushed them; that the injury caused her a great deal of pain, and one of the fingers was in danger of remaining permanently stiff; and that she thought her medicine and nurse bill would amount to $200. On cross-examination she testified that she thought it was a brakeman who pushed up the berth. The testimony of the physician who treated her was introduced. He said that her forefinger might remain permanently stiffened as an effect of the injury.

Appellant contends that appellee had no right to leave her seat unless there was a necessity for so doing, and that such necessity should have been pleaded in her complaint and supported by proof, and that without such an allegation any proof thereof was inadmissible. Appellee testified that she went to the stove for the purpose of getting warm. This testimony was objected to by appellant upon the ground aforesaid, that there was no allegation thereof in the complaint, which objection was overruled. This point was subsequently again raised by a request to charge, submitted by appellant, that "the seats constructed in the [2 Wash. 387] cars used in the operation and running of trains by defendant railroad company are constructed for the convenience of passengers, and by such passengers to be occupied while the train is moving, and not to be left or deserted while the train is in motion except where a necessity therefor arises; and if an injury occurred to any passenger after having left his or her seat which would not have occurred had such passenger remained in his or her seat the railroad company would not be liable except when a necessity arose for leaving the seat, which necessity should have been pleaded and sustained by evidence." This instruction was refused by the court, and rightfully so. Of course, if the plaintiff's proof had shown that she was guilty of any negligent act which contributed to the injury, she could not recover unless the defendant, with knowledge of the situation, could by reasonable care and diligence have prevented the accident. Her leaving her seat as she did, according to her testimony, was not negligence upon her part, under the circumstances, and she was not bound to show in making her case that she was not guilty of contributory negligence. This was a matter for the defense to establish, if it was relied upon, and consequently there was no necessity for an allegation in the complaint of the kind contended for, and the proof of the plaintiff as to why she left her seat was incidental and immaterial. As to the burden of proof being upon the defense to show contributory negligence, see Hocum v. Weitherick, 22 Minn. 152; Railroad Co. v. Hoehl, 12 Bush, 41; Railroad Co. v. Gladmon, 15 Wall. 401; Railway Co. v. Pointer, 14 Kan. 37. We are aware that there is a conflict of authority upon this point, but deem the above rule the better one, after an examination of many authorities thereon pro and con submitted to us.

Appellant further contends that the following instruction given to the jury is erroneous, to wit: "You are instructed that if you find from the evidence that the bunk [2 Wash. 388] in question was so arranged that it might be raised up, and when so raised would so remain temporarily without being fully locked, and when so raised was in a dangerous condition, and was so at the time plaintiff was injured, and...