Parmelee v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 11 July 1916
• Docket Number: 13239.
• Citation: 92 Wash. 185,158 P. 977
• Court: Washington Supreme Court
• Parties: PARMELLE v. CHICAGO, M. & ST. P. RY. CO.

158 P. 977

92 Wash. 185

PARMELLE v. CHICAGO, M. & ST. P. RY. CO.

No. 13239.

Supreme Court of Washington

July 11, 1916

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Mary A. Parmelee, as administratrix of the estate of David Parmelee, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Griffin & Griffin, of Seattle, for appellant.

Geo. W Korte, of Seattle, for respondent.

CHADWICK J.

Appellant as administratrix, brought this action to recover damages for the death of David Parmelee, who was killed while in the performance of his duties as brakeman in the employ of respondent. The immediate facts concerning the untoward event are as follows: Deceased reported for duty as swing brakeman on train No. 64 east, leaving Seattle at 10 o'clock p m., July 5, 1914. The crew consisted of Parker, conductor, Watson, head brakeman, Parmelee, swing brakeman, and Kidler, flagman. As made up in Seattle yards, the train consisted of an engine, one large automobile car, one stock car, and the caboose in the order named. At Black River Junction, a 25-minute run from Seattle, 38 cars were switched into the train ahead of the automobile and stock car. No. 63 extra west pulled into the yards as No. 64 was being made up and, as the main line was blocked, had to remain there until the departure of No. 64. The crew of the west-bound freight consisted of Andrews, conductor, Fetrow, head brakeman, Ward, rear brakeman, and Merriman, flagman. When train No. 64 started east, Fetrow and Parmelee were talking together on top of the automobile car. After the train had gone a short distance, Fetrow left Parmelee and stepped over onto a car on an adjoining side track. He testifies that the last he saw of Parmelee he was going toward the caboose. As the train passed Merriman, Parmelee, who was then standing in the middle of the stock car and looking toward the engine, called out: 'Good night, Merry.' Merriman is the last person who saw him before the accident. Shortly afterwards, and when the train had moved about four car lengths, Merriman heard the lantern fall, and called the attention of Fetrow, who was near, saying that he thought Parmelee had fallen. Upon investigation by Fetrow, Parmelee was found lying between the side tracks. Fetrow testifies that Parmelee's only statements were: 'I fell off; I fell between.'

Appellant sought to prove that the stock car was in a defective condition in that one of the feed holes in the top of the car--the one on the rear left-hand side of the car--had been nailed over with boards; that one of the boards had been nailed over the hinge of the door of the feed hole so that there was a space of from 1 1/2 to 2 inches between the edge of the board and the roof of the car, the obstruction being on the side nearest the running board; that deceased had performed his duty on top of the train and was proceeding on his way to the caboose which was the next car in the rear, and in which he was accustomed to ride between stations; that it was usual for brakemen thus engaged, and moving, to pass diagonally across the corner of the roof; that deceased must have so passed and, in passing, tripped over the board which had been nailed over the hinge, and fell between the stock car and the caboose.

We have said no one saw decedent fall, and no one can say, with certainty, how the accident happened. The testimony to sustain the facts and circumstances relied upon may be summarized. The head brakeman said he rode in the cupola of the caboose from Seattle to Black River Junction; that, while passing by one to two electric lights, he noticed that the feed hole of the stock car had been boarded over. One witness says he saw decedent jump from the automobile car which was about four feet higher than the stock car, and that, after the lapse of about such time as it would take a man to go the length of the car, he saw his lantern jerk or swing and disappear. This witness was about 600 feet away, 15 car lengths. Another witness says he heard what he thought was a stumble. Another witness heard decedent's lantern crash upon the ground.

We have held that negligence may be proven by circumstantial evidence. Sweeten v. Pacific Power & Light Co., 88 Wash. 679, 153 P. 1054; Anna F. Frescoln, as Administratrix, v. Puget Sound L. & P. Co., 155 P. 395. We have also held that proof of negligence does not have to be beyond a reasonable doubt. Holland v. Bridenstine, 55 Wash. 470, 104 P. 626; St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804. But this court has never held, nor has any other that we are aware of, that the proof of the proximate cause could be left to conjecture or speculation. See Weckter v. Great Northern R. Co., 54 Wash. 203, 102 P. 1053, and cases cited.

Negligence being a fact to be proven either by direct or circumstantial evidence, and not to be presumed upon conjecture or speculation ( Wilkie v. Chehalis County Logging, etc., Co., 55 Wash. 324, 104 P. 616; Frescoln v. Pacific Power & Light Co., supra), it is necessary to consider whether appellant has proved a case of negligence or whether the cause of decedent's death rests in speculation and conjecture. If there be proof of probable cause, whether the injury resulted in consequence of the established cause may be left to reasonable inference. That is what is meant by reasonable inference from established facts. Miller-Brent Lumber Co. v. Douglas et al., 167 Ala. 286, 52 So. 414. In other words, there can be no inference of fact unless an antecedent fact or condition be proven by direct or circumstantial evidence. Inference follows certainty, and is the ultimate and compelling conclusion of the mind from established facts. No presumption of negligence arises from the mere fact that the deceased was found dead alongside of the track. This, counsel admits, and undertakes to prove a cause, an act of negligence.

Although denied by the other witnesses, one witness has sworn that boards had been nailed over the hinge on the feed hole so that a space was left between the roof of the car and the board. This would be a sufficient cause but the proof fails to bring deceased in contact with the alleged defect. It shows, at best, only a possibility. This court, in the case of Whitehouse v. Bryant Lum., etc., Co., 50 Wash. 563, 97 P. 751, has stated the governing principle. The court said:

'* * * Conceding, for the purpose of the case, that there was testimony upon which the jury might have been warranted in finding negligence on the part of the respondent, there is no testimony upon which a jury could have based a conclusion that such negligence was the proximate cause of the injury, not because there was no eyewitness to the accident, since it is undoubtedly the established law that the proximate cause may be shown by direct evidence or it may be adduced as an inference from other facts proven, but because no legitimate inference can be drawn that an accident happened in a certain way by simply showing that it might have happened in that way, and without further showing that it could not reasonably have happened in any other way.'

The case of Corcoran v. Boston & Albany Railroad, 133 Mass. 507, seems to be in point. In that case, it was contended that the deceased, who was a brakeman, was killed by being knocked from a ladder on the side of the car, upon which it was his duty to go while the train was passing through a cut, by an accumulation of ice and snow which the defendant had negligently suffered to be there.

'While the train was going through the cut, at the rate of 15 miles an hour, the intestate was seen to go down from the top of a house car to a platform car to set the brake on that car, and this was the last seen of him alive. The brake on the platform car was afterwards found to be set. His next duty was to ascend a ladder on the side of a house car, in the rear of the platform car, to set the brake on that car. His lighted lantern was seen on the top of this car, and the lantern was afterwards found there.

'The train of cars was moving towards the east, and the greater part of the interstate's dead body was found a quarter of a mile to the eastward of the center of the cut. An impression was found in the snow by the side of the track just east of the place where the ice on the side of the cut came nearest to the track, indicating that something heavy had fallen there.'

The court disposed of the case, saying:

'The burden of proof is upon the plaintiff to show that her intestate was using due care when the accident happened. * * * It is impossible to tell from the evidence how the intestate fell from the cars,

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