Northern Pac. Ry. Co. v. Curtz

• Decision Date: 06 May 1912
• Docket Number: 2,098.
• Citation: 196 F. 367
• Parties: NORTHERN PAC. RY. CO. v. CURTZ.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F. 367

NORTHERN PAC. RY. CO. v. CURTZ.

No. 2,098.

United States Court of Appeals, Ninth Circuit.

May 6, 1912

The defendant in error brought an action against the plaintiff in error to recover damages for personal injuries. The complaint alleged that on or about September 12, 1908, the plaintiff in error held on its switches on Dock street in Tacoma three or four empty cars which had recently been unloaded of wheat that there was loose wheat lying on the floors of the cars that the plaintiff in error customarily stored at that place cars from which wheat had been unloaded; that it was customary for many people, including women and children residing in Tacoma, to collect the wheat in the cars by sweeping the floors thereof; that the plaintiff in error well knew this custom, and permitted and licensed and encouraged said people, including boys of tender years, to enter said cars and sweep up and remove the wheat therefrom; that the defendant in error, a boy of 11 years of age, was carelessly and negligently invited and permitted by the plaintiff in error to board one of its said box cars so standing on said storage tracks for the purpose of sweeping up wheat in said cars; that he was of immature judgment, and unaware of the dangers connected therewith, and that while he and other boys were in said car the servants and employes of the plaintiff in error, knowing that they were there, and in a dangerous position, negligently and carelessly and without warning to the defendant in error or to others propelled a locomotive to which was attached some other cars with great and unnecessary violence and force against the car in which the defendant in error was standing, and thereby caused the same to be moved suddenly and with great violence, throwing the defendant in error from the car and onto the track in front of the wheels of the car, whereby he was injured. The answer put in issue the allegations of negligence, and denied that the plaintiff in error invited or permitted the defendant in error or others to enter said cars for any purpose. On the trial of the case judgment was rendered for the defendant in error.

Geo. T Reid, J. W. Quick, and L.B. da Ponte, all of Tacoma, Wash., for plaintiff in error.

Heber McHugh and John T. Casey, both of Seattle, Wash., and Bates, Peer & Peterson, of Tacoma, Wash., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to the denial of the motion of the plaintiff in error for an instructed verdict. The evidence showed that the injury occurred, not on the private property of the plaintiff in error, but upon a public street of the city of Tacoma where it was the custom of the railroad company to store its empty wheat cars. There was evidence that loose wheat was left in each car after unloading, and that for more than six years prior to the time of the accident men, boys, and girls daily and openly went into such empty cars to sweep and gather up loose wheat. There was evidence, too, that the railroad employes, including the switchmen, never drove any of these persons away, that there were no notices posted warning trespassers from the cars, and that no other warning was given by the employes of the company. There was evidence that the switchmen frequently told boys where wheat could be found in the cars, and there was testimony that but a few minutes before the injury complained of a switchman directed the defendant in error and his two little cousins to the cars, in one of which the defendant in error was sweeping wheat at the time of the injury. There was evidence tending to show that the company knew that the children were in...