Pearson v. Northern P. Ry. Co.

• Citation: 129 P. 573,72 Wash. 8
• Court: Washington Supreme Court
• Decision Date: 28 January 1913
• Parties: PEARSON v. NORTHERN PAC. RY. CO.

129 P. 573

72 Wash. 8

PEARSON v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

January 28, 1913

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by Joe Pearson against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Geo. T. Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for appellant.

Govnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, all of Tacoma, for respondent.

MORRIS J.

Respondent was injured while in the employ of appellant, and brought this action alleging that his injury was caused by the appellant causing a train 'to collide violently' with a string of six box cars, standing upon a switch, and upon one of which he was at the time engaged in covering the roof with tar paper. The appeal is taken from a judgment following verdict in his favor.

The only question suggested by the appeal is insufficiency of the evidence to justify the verdict. It follows that, if there was any substantial evidence upon which the verdict can rest it must be sustained. With this rule in mind, we have read the transcript of the testimony, and must hold that appellant's claim of error is well taken. There is no evidence, as alleged in the complaint, that a train collided violently with the string of box cars upon the switch causing respondent to be thrown from the car upon which he was working. At the time of the accident, and about 5:30 p m., respondent was on the roof of the fourth car in the string, placing the tar paper upon the roof. These six cars were upon a switch near Winlock, and were used by a bridge gang as living quarters; one of them being a tool car, another being used as a kitchen and dining car. It was a wet day, and the tar paper was covered with mica dust, making it slippery. Respondent was standing in a stooping position about the center of the car, trying to shove the paper under a tin plate surrounding the smoke stack, when, as he says, 'the roof felt like it went out, and the next I knew they picked me up.' His testimony then proceeds as follows: 'Q. What moved the cars? A. Something hit it. Q. What hit it? A. I didn't see. Q. What could hit it? A. The engine when kicking cars. Q. Could anything else hit it? A. No, sir; not to make it jar.' He then says he saw no engine, nor heard any, and in response to the question, 'How do you know an engine struck the cars?' he replied, 'I could feel when I was standing that it went out, what I was standing on'; that the car moved 'like it struck'; could not say 'how hard it hit.' There is no evidence in this testimony that a train 'collided violently,' or at all, with these box cars. Respondent heard no train; saw no train. The only referrence to any collision is 'that an engine kicking cars could hit the string of box cars.' This is not positive testimony of any degree that any engine did collide with these box cars. To say an engine could do it is no proof that an engine did do it. When stripped of its opinion and conjecture, respondent's evidence goes no farther than that something hit the cars hard enough to throw him to the ground. What it was is not disclosed.

The respondent nor any other witness in his behalf testified to the presence of any engine near the scene of the accident either before it happened or afterwards. It seems to us that, if the law does not require some evidence that an engine did do it, it would at least require some evidence that there was an engine working around there that could do it. But the evidence does not go that far. That respondent is only guessing at his engine theory is apparent from his answer to the question, 'How do you know an engine struck the cars?' If there was any fact within his knowledge upon which to base his belief that it was an engine, it seems to us he would have given it in response to this question; but he answers it, 'I could feel when I was standing that it went out, what I was standing on.' This is nothing more than to say, because he fell off from the car upon which he was standing, or, using his own idion, when what he was standing on went out from under him, he knew an engine had collided with the string of cars. We cannot see how one fact proves the other, or under what rule of law a jury should be permitted to say it does. A brother of respondent was painting in one of these box cars. He says: 'Something hit the train and jarred it.' He felt the shock; but it did not affect him and he paid no...