Northern Pac. Ry. Co. v. Baxter

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Northern Pac. Ry. Co. v. Baxter, 187 F. 787 (9th Cir. 1911)
• Decision Date: 22 May 1911
• Docket Number: 1,901.
• Parties: NORTHERN PAC. RY. CO. v. BAXTER.

187 F. 787

NORTHERN PAC. RY. CO. v. BAXTER.

No. 1,901.

United States Court of Appeals, Ninth Circuit.

May 22, 1911

Geo. T Reid, J. W. Quick and L. B. Da Ponte, for plaintiff in error.

Charles O. Bates, Newton H. Peer and Charles T. Peterson, for defendant in error.

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

WOLVERTON District Judge.

This is a writ of error from a judgment of the Circuit Court awarding damages to the defendant in error on account of personal injuries received, resulting from the alleged negligence of the plaintiff in error in the operation of its engine with car attached in making what is known in railroad parlance as a 'flying switch' with the car. The accident occurred near the depot at Tenino, Wash. The general course of the railroad as it passes that point is north and south. The company has two tracks east of the depot paralleling each other, one the main and the other a passing track. It also has a house track running on the west of the depot and forming a junction 420 feet south thereof with the main track. One hundred twenty feet still further south a storage track runs off from the main track southward. Across the house track from the depot, and about 70 feet distant therefrom, was situated a hotel and saloon, and many persons were accustomed to cross and recross to and from the saloon and depot. Situated a half mile south of Tenino, on the line of the railroad, is a large sawmill, and the employes of that concern, as well as other persons, habitually traveled to and from Tenino upon and along the main and passing tracks of the company and upon and along the house track from its junction with the main track to the depot and hotel and saloon. It is in testimony that as many as 20 or 30 persons or more traveled daily along and upon these tracks. Plaintiff testified in brief that on the morning of the accident, namely, July 3 1908, he was working with a bridge crew repairing a bridge about a mile to the north of Tenino; that, the boarding cars having been left on the storage track, on quitting work at noon the men came in through Tenino and went to the cars for dinner; that, after dinner was over, plaintiff picked up a spud, being a timber used for prying, which was lying along the way, and started back towards Tenino; that he came to the house track 85 or 90 feet from its junction with the main track, and started to walk along it, having the spud on his shoulder, and was hit by a box car which came up behind him; that he looked and saw no one on the car, or in charge of it; that the point where he was struck was about 125 feet from the junction with the main track; that, when he left the boarding car, he saw Hicks, a brakeman, near the switch; that he also saw an engine with a car in front of it standing on the main track about 120 feet south of the junction with the house track, and McMichel, another brakeman, near the engine; that, when he entered upon the track, he looked back, then looked back again after he had proceeded a short distance, and both times saw the engine still standing beyond the switch, and that shortly thereafter he was struck by the car; that he had not walked over 45 feet along the track when he was struck, and about 15 feet when he looked back the second time; that he was walking outside of the west rail and within about 24 inches thereof; that the car struck him and the timber in such a way as to throw his arm upon the track, whereby he received the injury of which he complains; further, that there was no signal or other warning given of the approach of the car.

A...