Riggs v. Northern P. Ry. Co.

• Decision Date: 12 October 1910
• Citation: 111 P. 162,60 Wash. 292
• Parties: RIGGS v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

111 P. 162

60 Wash. 292

RIGGS v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

October 12, 1910

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Georgian A. Riggs, a minor, by her guardian ad litem against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for new trial.

Roche &amp Onstine, for appellant.

Edward J. Cannon, Arthur B. Lee, George M. Ferris, and Charles E. Swan, for respondent.

CROW J.

Action by Georgian A. Riggs, a minor, by Geraldine Riggs Shinn, her guardian ad litem, against the Northern Pacific Railway Company, a corporation, to recover damages for the wrongful death of plaintiff's father. The trial judge sustained the defendant's motion for a verdict, and dismissed the action. The plaintiff has appealed.

George A. Riggs was employed by the respondent corporation as a brakeman. On the evening of February 26, 1907, he fell from a car and received injuries which resulted in his death. He left one child, the appellant Georgian A. Riggs; also a widow, Geraldine Riggs, since married and now known as Geraldine Riggs Shinn, who is the guardian ad litem for appellant. This action was commenced by appellant as minor child of the deceased by her guardian ad litem for damages in the sum of $2,000. About the same time Geraldine Riggs Shinn, widow of the deceased, commenced a separate action against the railway company for damages in the sum of $2,000 sustained by her. It is conceded by the appellant that these separate actions were thus commenced to avoid their removal to the federal court; the respondent being a nonresident corporation. When this action was called for trial, the court, holding the opinion that one action only could be maintained, required the widow, upon motion of the railway company, to announce whether she would waive her right to prosecute her separate action. She, protesting and excepting, waived her cause of action in order that this cause might proceed to trial. The appellant now contends that separate actions may be maintained, and that the court erred in requiring the widow to make and declare her election. There may be some doubt as to whether the order should be reviewed in this action, as, in substance, it affects the other action only; but, as it was made herein, we will consider the question raised.

The right of action awarded to the widow and child is granted by section 4828, Ballinger's Ann. Codes & St. (Pierce's Code, § 256), since amended. Rem. & Bal. Code, § 183. The original section, which was the law at the time of the commencement of this action, so far as pertinent read as follows: 'When the death of a person is caused by the wrongful act or neglect of another his heirs or personal representatives may maintain an action for damages against the person causing the death.' This language indicates an intention to grant one cause of action only, to be prosecuted in a single proceeding by the heirs or personal representatives of the deceased. Were we to hold that a separate action could be maintained by each independent heir, such a ruling might in some instances result in subjecting the negligent party to a multiplicity of suits for a single wrongful act. Appellant, however, insists that, if any order was to be made by the trial judge, it should have been one consolidating the actions. No such order was requested by either the appellant or the respondent. It is apparent that the appellant did not desire a consolidation. No order of consolidation was refused by the trial judge, and the question whether a consolidation should have been directed is not before us for review.

Appellant's next contention is that the trial judge erred in sustaining respondent's objection to appellant's offer of proof of certain statements made by several persons after they had examined a car which they thought had caused the injury. The injured brakeman was found lying on the north side of a house track with his feet crushed. In response to questions, he immediately stated that, as he was attempting to ascend a ladder or steps on one of the cars, a loose step or handhold pulled out, gave way, caused him to fall and strike his head on a rail; that he was thereby stunned to such an extent that, before he could recover, the car wheels passed over him. Evidence of this statement was admitted without objection as a part of the res gestae. Thereafter several of the parties to whom he had made these statements walked down the track to some cars which they examined. When they returned, they made statements as to what they there learned relative to a certain handhold claimed to be loose. Appellant insisted that other witnesses who heard these statements should be permitted to testify to them as a part of the res gestae, and now contends that the trial judge erred in excluding their testimony. We do not think the statements of these parties were any part of the res gestae, although made shortly after the accident. The persons mentioned had inspected the cars and made their statements after reflection and a due consideration of what they had observed. There is no showing that these statements were spontaneous; that they related to the accident itself, the manner in which it happened, or that they were made without reflection. They were no part of the res gestae, and the trial court properly excluded them.

The controlling question before us is whether error was committed in directing a verdict in favor of respondent. Although we do not find this question free from difficulty, we have concluded that the case was one for the jury. No witness saw the accident, and the injured man only knew how it happened. The evidence of appellant's witnesses in its substance and effect was that the injured man was found lying immediately north of the house track; that, when asked how the accident happened, he stated that he fell from the car that 'one of the grab irons came loose'; 'one end came loose;' 'something broke and I fell back and struck my head;' that he became unconscious, and that, before he could recover himself, the car passed over and injured him; that he...