Northern Pac. Ry. Co. v. Chervenak

Decision Date10 February 1913
Docket Number2,137.
Citation203 F. 884
PartiesNORTHERN PAC. RY. CO. v. CHERVENAK.
CourtU.S. Court of Appeals — Ninth Circuit

The plaintiff brought an action in the United States District Court for the Western District of Washington, Southern Division, in December, 1910, against the defendant to recover damages for personal injuries alleged to have been received by the plaintiff, and charged to have been caused by the defendant at the town of Roslyn, in the state of Washington on the 7th day of September, 1897. Roslyn is and was at the time of the injury a station on the defendant's railroad. The plaintiff was born on May 31, 1892, and at the time of the injury was a child aged five years, three months, and six days.

The defendant, the Northern Pacific Railway Company, owned and operated a railroad running through the town of Roslyn, and in conducting its business in that place owned and operated several lines of side track or switches. The Northwestern Improvement Company was a corporation owning and operating coal mines in the vicinity of Roslyn, and also owning certain tracts of land on a portion of which were the tracks of the Northern Pacific Railway. The Northwestern Improvement Company was originally made a defendant in the case; but at the close of the testimony on behalf of the plaintiff, no evidence appearing tending to show negligence on the part of that company with respect to the injury to the plaintiff, the action was dismissed by the plaintiff as against that company. Roslyn at the time of the accident was a mining town of about 3,000 inhabitants. Pennsylvania avenue was the principal street of the town, and, extending through its principal business part, terminated at the right of way or tracks of the railroad company. One of the tracks was inclosed by a snowshed about 300 feet long and extended over that part of the track which would have been crossed by Pennsylvania avenue had it been extended. A wagon road extended from the termination of Pennsylvania avenue across the railway tracks and through an opening in this snowshed which was about 10 or 12 feet wide. This roadway, planked for teams to cross over, had been used for a number of years by the Northwestern Improvement Company to transport material and supplies from Roslyn to its mines, and in passing to its machine shops, carpenter shops, blacksmith shops, etc., which were located on the opposite side of the railway tracks from the town of Roslyn. It was also used by the miners going to and from their work, by children going to school, and by others residing on the opposite side of the tracks from the town in a place known as Brookside addition. There was another crossing about 225 yards above, but this was the crossing generally used by people crossing from one side of the track to the other. The railway track which passed under the snowshed was used for delivering empty cars down to the tipple at a mine below to be loaded. This track was on a grade so that the cars would run down toward the tipple of their own momentum. The track runs north and south, the tipple being at the south end, and the manner of operating the cars was to place the empty cars at the north end of the track, where they could be taken charge of by a man in the employ of the railway company, who would usually take a string of seven or eight cars coupled together, loosen the brakes, and let the cars run down the track under the shed until the first car would be upon the scales, located about 75 feet north of the roadway passing through the snowshed. He would then stop the cars by setting the brake on one of them get off the car and weigh the one on the scales, and then go back on the car, loosen the brake, and let the cars run until the next car was on the scales, when he would again set the brake, stop the cars, get off and weigh the car, and then go back on the car and repeat this process until all the cars which he had in the string were weighed, when he would again go back on the car, loosen the brake, and let the cars run down to the tipple.

On the day of the accident, the plaintiff, together with four other boys, whose ages ranged from 7 to 10 years, had gotten together at a point on the west side of the tracks next to the town and south of Pennsylvania avenue, where they had been attracted by a car that was off the track. From there they started to go to their homes in the Brookside addition to Roslyn, which lay east of the tracks and to the north of the roadway through the snowshed. The boys followed the roadway passing through the snowshed; but, arriving there, they found the roadway blocked with cars which had been or were being weighed and passed over the scales in the manner above described. No engine was attached to these cars and no one seen by the boys to be in charge of the cars. After waiting outside of the snowshed for some time, estimated by the boys from 15 to 30 minutes, during which time the cars were not moved, and as there was no indication that they were about to be moved, and no one seen by the boys to be in charge of them, they decided to cross the track by going under the cars. The older boys started, and the plaintiff followed; he passing under the coupling between two cars and was the last to attempt to go through. About this time an employe of the defendant, for the purpose of letting the cars down to the tipple, proceeded without notice or warning of any kind to release the brakes holding the cars and permitting them to run down the track by force of gravity. Before the plaintiff could get through, the cars were in motion, and as he was passing over the last rail a wheel of one of the cars caught his foot and crushed it so that amputation of his foot was necessary, and the operation was performed by a surgeon soon after the injury. The cars were being handled at the time by one Robert Jackson, an employe of the defendant, who died before this action was commenced.

In the course of the trial the plaintiff called as a witness H. P. Howell, a life insurance agent, who was permitted to testify over the objection of the defendant that the life expectancy of a man 19 years of age was 42.87, and a man of 20 years of age 42.20.

Upon the conclusion of the testimony on the part of the plaintiff, the defendant moved the court to direct the jury to return a verdict for the defendant.

The motion was denied, and the defendant allowed an exception. The jury returned a verdict in favor of the plaintiff in the sum of $2,850. The defendant brings the case here upon writ of error.

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

Robert M. Davis and Frank C. Neal, both of Tacoma, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

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

Defendant refers to the fact that this action was not brought until 14 years after the injury and would have been barred by the statute of limitations had not the plaintiff been a minor. This circumstance, defendant suggests, is of such an unusual and suspicious character as to impose upon the court the duty of investigating the circumstances with unusual care and not impose the penalty upon the defendant unless the plaintiff's evidence shows a clear right to recovery. The explanation of the delay in bringing the suit is not in the record. A probable and plausible explanation is stated in the brief of the plaintiff, but we do not propose to enter into a discussion of the fact or its explanation. It is sufficient that the statute of limitations of the state of Washington does not apply to persons under the age of 21 years. Remington & Ballinger's Ann. Codes & Statutes of Washington, Sec. 169. The delay does not appear to have had any substantial bearing upon the merits, nor has it been in any way prejudicial to the rights of the defendant. Further than this it is the duty of this court to examine every case before it with care and without regard to matters not properly before it.

The action of the court in denying defendant's motion to instruct the jury to return a verdict for the defendant is assigned as error.

The motion was necessarily based upon the objection that there was no question of fact to be submitted to the jury. The objection involves the question whether, under all the circumstances, the defendant was charged with a duty to the plaintiff which the evidence tended to show it neglected to perform. The plaintiff was a child a little more than five years of age. Defendant's train of cars blocked a crossing where people including children were in the habit of passing from one side of the track to the other. To this train of cars no engine was attached, and plaintiff testifies that he saw no one in charge of it. The presence of a live engine attached to the train would have been of itself a warning to a child of five years of age that there was danger in crossing under the cars, and the absence of this warning was to that extent an absence of notice that there was danger. Furthermore, the cars had not been moved for some time, and the boys did not see any one in charge of them, and were not warned by any one that the cars were about to be moved. Had the cars been moved while the boys were waiting or had the boys seen that they were in charge of some one, the situation might have been a sufficient warning that there was danger that the cars would be likely to be moved at any moment; but in the absence of these usual and ordinary warning signs, and in the absence of any actual warning from the person in charge of the cars that he was about to move them, it was plainly a fact for the jury to determine whether under all the circumstances the defendant was charged with a duty to the plaintiff which...

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    • United States
    • United States State Supreme Court of North Carolina
    • December 9, 1925
    ...not be attributed to him. Snare & Triest Co. v. Friedman, 169 F. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367; Northern Pac. R. Co. v. Chervenak, 203 F. 884, 122 C. C. A. 178; Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88; St. Louis I. M. & S. R. Co. v. Denty, 63 Ark. 177, 37 S. W. 719; L......
  • Campbell v. Model Steam Laundry
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    • United States State Supreme Court of North Carolina
    • December 9, 1925
    ...... Snare & Triest Co. v. Friedman, 169 F. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367; Northern Pac. R. Co. v. Chervenak, 203 F. 884, 122 C. C. A. 178; Sheffield. Co. v. Harris, 183 Ala. 357, ......
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    ...14. 2Allen v. United States, 150 U.S. 551, 14 S.Ct. 196, 37 L.Ed. 1179. 3Among the cases taking the latter view are Northern Pac. R. Co. v. Chevernak, 9 Cir., 203 F. 884; Shellaberger v. Fisher, 8 Cir., 143 F. 937; Luhman v. Hoover, 6 Cir., 100 F.2d 127, decided according to Indiana law; Po......
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    • U.S. District Court — District of Idaho
    • September 18, 1939
    ...state Supreme Court in Anderson v. Great Northern Ry. Co., supra; Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713; Northern Pac. Ry. Co. v. Chervenak, 9 Cir., 203 F. 884. After reaching the conclusion that the defendants were negligent and that the plaintiff is entitled to a judgment, we ap......
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