Peterson v. Seattle Traction Co.

• Decision Date: 27 December 1900
• Citation: 23 Wash. 615,63 P. 539
• Parties: PETERSON v. SEATTLE TRACTION CO.
• Court: Washington Supreme Court

63 P. 539

23 Wash. 615

PETERSON v. SEATTLE TRACTION CO.

Supreme Court of Washington

December 27, 1900

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Paul Peterson against the Seattle Traction Company. From a judgment for plaintiff, defendant appeals. Reversed.

Burke Shepard & McGilvra, for appellant.

Milo A Root and Brady & Gay, for respondent.

WHITE J.

Appellant was operating a street railway in Seattle, and respondent was working for appellant as a day laborer along its track. The contract of employment, as claimed by respondent, gave respondent, per day, $1.50, and transportation to and from his work. His daily work closed at 6 o'clock p. m. As evidence of respondent's right to transportation, appellant furnished him a book of tickets which tickets he used when traveling to and from his work. This book had a stipulation printed thereon exempting appellant from any liability for injury to respondent. The first book of tickets was furnished respondent a few days after his employment. At the time of his employment nothing was said to him about his transportation having any conditions upon it exempting the company from liability, and the contract of employment, it was claimed by respondent, did not provide for transportation so conditioned. Respondent was injured by negligence of the company while riding on its car on his way home after his day's work was completed. The evidence does not show what particular officer or employé was guilty of the negligence which caused the injury. The car was inward bound to Seattle on the appellant's single-track Green Lake suburban line, leaving the lack end of the line just after 6 o'clock p. m., and the accident occurred within a few minutes after the car started, being caused by a head-end collision with an outward-bound car on the same line while the cars were on a curve rounding a projecting bluff on the side of the lake, which prevented the motorman of either car from seeing the other until within a short distance from it. The respondent was riding on the rear platform of the inward-bound car, and received his injuries from the shock of the collision, being thrown against the rear wall of the inclosed part of the car, thus receiving a violent blow on the head, and then falling or being thrown to the ground. The respondent recovered judgment for $3,000. The plaintiff (respondent) only testified as to the contract of employment, as follows: 'On the 25th of January, 1899, I met Linder, the foreman of the defendant, on Fifth avenue, close to Pike, and asked him for work; and he says, 'All right. Come in the morning.' I says, 'What do you pay?' And he says, 'A dollar and a half a day.' And I says, 'That is very small, aint it?' And he says, 'We pay a dolar and a half a day, and transportation to and from your work.' I says. 'All right. I will come in the morning.' And he says, 'The tool box is between Western avenue and Harrison street. Come down there in the morning.' And I walked from my home in the morning, and walked home in the evening, and walked out again the next morning, down to the took box; and one day he gave me a book with tickets in it. The foreman of the company gave it to me. I never had any different agreement or contract than that one made at that time.' On cross-examination he testified: 'I went to work for the traction company about the 26th of January, last year. The foreman of the track gang hired me on Fifth avenue, close to Pike. I did not see him at the company's office. I had not worked for this same foreman before, but had seen him. He was working for the traction company, and told me that the company would pay a dollar and a half a day, and transportation to and from my work. They gave me a book of tickets. * * * I don't know what the printing was. I received that book from the foreman * * * a day or two after I went to work. I cannot say the date when I received my last book from the company while I was at work. It was further back than just a day or two before this accident. * * * The last book that I had--the one that I got a little before the accident--was given to me by Linder, the foreman, * * * out at Green Lake. I know Mr. Kempster, the secretary of the company. He did not give me this book in the company's office. * * * I did not sign that condition on the back. If I went to the office and got a book, and he came with the book and pen and ink and said, 'Put your name on the back.' I put my name on it and put it in my pocket and went out. I don't know the name of the man who would give a book to me at the office. * * * Before this last book was issued to me, I had received some books like this at the office, and signed my name on the back when the clerk told me to. I suppose that this book that was given to me last was the same sort and had the same cover as those others, but I did not pay much attention to it. I never looked. * * * I got on the car coming into town that night before the accident because I was going home from my work. My day's work was done. When I got on the car again in Fremont (this was the returning car after the accident) the conductor came and wanted the ticket, and I had one in my pocket, and I gave him one. * * * He did not collect the fares before the cars came together, he had not got to me to collect the ticket then, and had not taken up the tickets before I was hurt, but he did afterwards, in Fremont. When I went out to Green Lake on the morning of the day I was hurt, I rode out there to may work, and when the conductor called for my fare I gave him a ticket. I went out to Green Lake that morning to go to work, and did not have any other errand out at Green Lake that day. I went just to go to my work, and when I came in it was to go home from my work.' E. Linder, the foreman of the track gang, who employed the plaintiff, testified for the appellant. He was not asked any question relative to the employment of the plaintiff, but his testimony was to the effect that about the middle of June, 1899, he took up from the plaintiff an employés ticket book which the plaintiff had for use on the line, and that he returned to Mr. Kempster, the secretary of the company, the unused part of the book taken up from Mr. Peterson. He further testified as to the accident, and that he and the members of the track gang, including Peterson, were in the car, going home, at the end of the day's work. A. L. Kempster, the secretary of the appellant, testified that he issued to the plaintiff on May 29, 1899, a book of coupon tickets, and he identified the book taken up from Peterson as the book; that when it was issued it had on it a cover with certain printed matter, and when it was returned the cover was off. No question was asied this witness as to his authority to make contracts for the company, or as to his authority to employ workmen for the company. Except as hereinafter stated, the foregoing is all the testimony in the case, or offered, touching the employment of the plaintiff, or relative to his transportation. There was testimony tending to show that the plaintiff was injured by the accident, and the nature and extent thereof.

Was the plaintiff a fellow servant of the operators of the cars at the time of the accident? The case of Lundquist v. Railway Co. (Minn.) 67 N.W. 1006, cited by appellant, was as follows: The defendant was a street-railway corporation operating a street railway in Duluth. The plaintiff was one of a crew of men employed by the defendant, who were engaged in repairing tracks by taking up and relaying the pavement between the rails over which the defendant's street cars, operated by electric power, passed frequently at irregular intervals. Operators of the cars were required by rule to give warning of their approach to the crew of track repairers. Plaintiff was pursuing his work in reliance on the rule. While so engaged, and without notice, he was struck by the car. He was held to be a fellow servant with the motorman. This case is in point only so far as it holds that the motorman and laborer were fellow servants at the time the accident occurred. In the case at bar the plaintiff was not injured when actually performing labor as a track layer. The case of Railroad Co. v. Hambly, 154 U.S. 349, 14 S.Ct. 983, 38 L.Ed. 1009, cited by appellant, holds that a laborer while working on a culvert under a foreman, and who received an injury, while at work, through the negligence of a conductor and engineer in moving and operating a passenger train, was a fellow servant of the engineer and conductor. The case of Railroad Co. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181, cited by appellant, holds that a brakeman who was killed by the negligence of the conductor while the train was being operated, and the brakeman was discharging his duties as such on the train, was a fellow servant with the conductor. These cases hold that a common employment existed at the time the accident occurred, and then apply the doctrine of fellow servants. In the case at bar it is claimed by respondent that the relation of master and servant did not exist between the parties when the plaintiff received the injury. It this was the case, it is useless to discuss whether or not a track layer and operators of street cars are fellow servants during the time they are actually engaged in their common employment. The real question to be determined is, was the plaintiff in the service of the defendant when on the street car at the time the accident occurred? We will first examine the cases cited by the appellant on this proposition.

The case of Russell v. Railroad Co., 17 N.Y. 134, was as follows: A laborer was employed by a railroad company to work in connection with a train of cars. The laborer lived in New York City. He...