Roth v. Union Depot Co.

• Decision Date: 27 January 1896
• Citation: 43 P. 641,13 Wash. 525
• Parties: ROTH v. UNION DEPOT CO.
• Court: Washington Supreme Court

43 P. 641

13 Wash. 525

ROTH v. UNION DEPOT CO.

Supreme Court of Washington

January 27, 1896

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Albert John Roth, an infant, by Frank Roth, his guardian ad litem, against the Union Depot Company, for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

For dissenting opinion, see 44 P. 253.

W. W Cotton, J. M. Ashton, and Lester S. Wilson, for appellant.

D. W Henley and Fenton & Saunders, for respondent.

DUNBAR J.

The defendant is a railway terminal company in the city of Spokane. Its railway tracks and yards lie parallel with the Spokane river, near its north bank, in that city. North of the defendant company's tracks and yards there is an addition to Spokane city, on which lived, at the time the accident alleged in this case occurred, a number of families, variously estimated in the testimony at from 25 to 50. The railway lines and switches of the appellant ran in a westerly direction across Washington street, at a right angle therewith, and near the north bank of and parallel with the Spokane river, and ran northerly from Washington street thence in a northwesterly direction, making a short curve around a high bluff of rocks, and thence in a straight line to and beyond the east line of Mill street, of said city extended north. At a point east of the east line of Mill street, so extended, the appellant had located a switch, from which diverged several side tracks, running parallel with each other, in an easterly direction, around said sharp curve. The railway tracks on the said switches were located on a down grade from Mill street, in an easterly direction, around the said sharp curve; and cars detached from an engine above the switches would, by reason of the down grade, run of their own momentum down to and across Washington street at a rapid speed. For many years before the construction of appellant's yards at this point, the people residing north of the appellant's right of way were in the habit of using several footpaths, which converged into a well-defined path as they reached the appellant's right of way near Howard street, and the people residing between Washington street and Mill street were accustomed to go to the south side of the river by these footpaths, which converged into one path near Howard street, and thence directly down the right of way of the appellant to Washington street; and there was also a path leading across the tracks of appellant, running along the north bank of the river to Washington street; but, after the construction of appellant's tracks, the path leading from, the tracks along the north bank of the river was abandoned as a footpath, and the people residing north of the tracks, after reaching the tracks, used the right of way of the company until they reached Washington street, it being a more convenient and shorter route to the city than any other way they could travel. It is insisted by the respondent, and the testimony shows without any doubt, that the appellant, and its servants and agents operating its cars at this point, knew of the existence of this footpath, and that the people of all ages residing to the north of the track were accustomed, at almost every hour of the day, to use this footpath and the right of way of appellant from the point where the path entered the right of way to Washington street; that it was not only used by people who lived north of the tracks, but that it was used indiscriminately. On the 12th day of April, 1892, the plaintiff and respondent, Albert John Roth, a boy nine years of age, while going down through this path on the right of way of appellant, was knocked down by a car, the wheels of which passed over one of his legs, crushing it so that amputation of that limb became necessary. It seems that the appellant's agents, in switching the cars, sometimes, when help was short, instead of sending an engine down with the empty car, would, in railroad parlance, "kick" the car, and let it go down the track unattended by a brakeman; that it was not the usual way to send the cars unattended by a brakeman, but that they sometimes did so; and it is conceded that that was the manner of switching the cars at the time of this accident. It seems that, at the same time that the respondent, who was in company with his sister and another boy of about his own age, came down the path, two cars were "kicked" down the track behind them on appellant's tracks, and the respondent, in order to avoid being injured by one of these cars, started to cross one of the tracks, and in doing so was run over by a car going down the track which he was attempting to cross. By reason of the close proximity of these cars, he became confused, and in attempting to escape from one, was run down by the other. Neither of these care was attended by any person, but they were "kicked" down, through the cut around the sharp curve, out of sight of the employés who "kicked" them, and they acquired a considerable speed by reason of the down grade of the track. It is conceded that there was no brakeman or any person along the track to look out for the cars, or to warn any person who might be on the track way of danger. The respondent, at the time of the injury, lived with his father and mother, north of the track, and was accustomed daily to go to the south side of the river to sell newspapers to support himself and his family. An action was brought in his interest, by Frank Roth, his guardian ad litem, and a verdict was rendered for $15,000 damages. Judgment followed, and an appeal has been taken to this court.

The overwhelming weight of testimony is to the effect that, for three or four years immediately preceding this accident, it had been the custom of the people north of the track, and of others, to use this right of way as a footpath; that from 50 to 100 people passed over it daily; that this custom was known to the appellant; that it made no objection to it; and that it posted no notices warning people not to travel upon the path. There was some little testimony offered in defense to the effect that people had been told not to go through there, but this was a question of fact, which was submitted to the jury, and, under the testimony, they were amply justified in coming to the conclusion that the travel was as alleged by the respondent. This condition of things was testified to, not only by numerous citizens, but by many of the employés of the company, or men who were employés during that time. One witness testified, "They used it just about the same as you would a sidewalk;" another, that persons traveling over this route could be seen every hour in the day. Witness L. N. Davis, who had worked for the company, and who lived in that neighborhood, testified, "Well, there is people, most all the times you would look out, traveling; especially at train time you would see them, all kinds of ways, going; see them taking little wagons, hauling trunks through there, and baby carriages, and everything." This witness testified that that was the main pathway of all the people north of the track. So that the essential question in this case is, was the respondent a licensee or a trespasser at the time he was traveling on the appellant's right of way, or does an acquiescence by a railway company in travel on its right of way imply a license? for it is an admitted fact in this case that the respondent was not there by special invitation of the appellant, that he was not there for the benefit of the appellant, but that he was there simply for his own convenience and pleasure. A number of cases are cited by the appellant to sustain the contention that, notwithstanding the fact that a railroad company acquiesces in such travel by the public, and does not take any steps to stop them, no implied consent to such use is established, and that such acquiescence does not vary the company's duties as to trespassers; and it may be conceded at the outset that a railroad company does not owe any duty to a trespasser, for there is no presumption that a trespasser, or a person without consent, actual or implied, will be upon the track.

We have carefully examined the cases cited by the appellant, and a majority of them we think can be easily distinguished from the case at bar. The case of Chenery v. Railroad Co., 160 Mass. 211, 35 N.E. 554, was an action for running down the plaintiff at a point on defendant's track where it was crossed by a private way, along which she was traveling. The court instructed the jury that, as a matter of law, if people were accustomed to cross a railroad track at a certain place, and the company made no objection license from the company was implied, and that such a license imposed a duty to use reasonable care to protect the crossers; and the court in that case simply held that this was a question of fact for the jury to determine. Railway Co. v. Phillips, 112 Ind. 59, 13 N.E. 132, was a case where a track was laid upon a public street, and the court held that the rights of the public and the railroad company respecting the use thereof were mutual, though those of the latter were paramount; that a person was not a trespasser who walked along such track, and if in so doing his foot became fastened in an opening which existed by reason of the negligent construction of the track, and he was run upon by a train of the railroad company which was negligently managed, he being without fault, the railroad company was liable for the injury sustained. This was what was decided in this case, though the court indulged in a general discussion of the subject involved in the present case, and said that, on the hypothesis that the place where the person received...