Rush v. Spokane Falls & N. Ry. Co.

• Decision Date: 13 December 1900
• Citation: 23 Wash. 501,63 P. 500
• Court: Washington Supreme Court
• Parties: RUSH v. SPOKANE FALLS & N. RY. CO.

63 P. 500

23 Wash. 501

RUSH v. SPOKANE FALLS & N. RY. CO.

Supreme Court of Washington

December 13, 1900

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by James Rush against the Spokane Falls & Northern Railway Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Albert Allen and Jay H. Adams, for appellant.

William H. Ludden and James Z. Moore, for respondent.

ANDERS J.

In April, 1897, the respondent, James Rush, was in the employ of the Spokane Falls & Northern Railway Company, appellant, in the capacity of a common laborer, and was engaged with others in riprapping and repairing its roadbed in the vicinity of Marcus and Bossburg, in this state. It was the duty of the respondent, in the course of his employment to load and unload rock, which was transported on appellant's cars from a quarry near the railroad track to places where it was needed. Dynamite or giant powder was used in blasting rock at the quarry, but the respondent had nothing to do with blasting, or with handling or using explosives. It was the custom of the railway company to convey its employés from their boarding camp to their work on its cars, and, accordingly, on April 28, 1897, a caboose attached to an engine was taken to the camp where the respondent and from 10 to 14 other laborers were boarding and lodging for the purpose of transporting them to the place where they were required to work on that day. Before the train reached the place where these workmen were, a box containing dynamite and fuse had been placed in the caboose near one of its two side doors (both of which were left open) by one Harklerode, who was at the time the foreman of this gang of laborers. The fuse was wrapped in paper, and laid on top of the giant powder, and the box containing both of these substances was left uncovered. After the respondent and the other men of his gang, their foreman, and Rogers, the superintendent of the work, had boarded the caboose, and proceeded several miles towards their destination, it was discovered by some one in the car that the paper covering the fuse was on fire. When the men became aware of the danger to which they were thus exposed, they were greatly alarmed and confused, and instantly undertook to get off the caboose. Some of them, it appears, jumped off at once, regardless of consequences. At the time the fire was discovered, the train was running at its usual rate of speed, but it was 'slowed up' almost immediately thereafter. On discovering his perilous situation, the respondent passed out of the car by way of the rear door, and sat down on the step or platform, intending to jump off as soon as the speed of the car would permit him to do so with safety. While the respondent was in that position, and the train still in motion, the powder exploded with such violence that the top and sides of the car were entirely destroyed, and the respondent was thrown upon the ground, and thereby stunned and bruised, and, as he claims, otherwise injured. This action was instituted to recover damages for the injuries thus sustained by the respondent, on the theory that the explosion was caused by the negligence of the appellant. The particular acts of negligence or breaches of duty charged against the appellant are set forth in the complaint as follows: '(6) That the engine to which said caboose was attached was in a defective and wornout condition, and was so negligently and carelessly managed by defendant that it emitted large volumes of smoke and sparks from the smokestack and furnace thereof; that the use of said engine in such condition and in the proximity to said explosive substance was gross carelessness on the part of said defendant; that if defendant had exercised ordinary care in and about the construction and care of said engine, said sparks would not have been emitted, and the explosion hereinafter mentioned would not have occurred. (7) That on the said 28th day of April, 1897, while the plaintiff was on board of said caboose, and riding thereon to his place of labor, as directed by said defendant, said explosive substance was ignited by the sparks and fire emitted by said engine, and without warning, and without plaintiff having an opportunity of saving himself from injury, the said explosive substance exploded with terrific force and violence, and caused the injury to plaintiff herein mentioned; and that said explosion and the injury received by plaintiff hereinafter mentioned were caused by gross carelessness and negligence of the defendant, and without negligence or fault on the part of this plaintiff. (8) That said explosive substance--giant powder or dynamite--was concealed in said caboose, and covered up in such a way by defendant that plaintiff was unable to learn or discover that the same was an explosive substance; and the said explosive substances and the manner in which they were covered up and concealed from this plaintiff constituted a latent danger then well known to the defendant, but unknown to the plaintiff; and while said latent danger existed on said caboose as aforesaid the said defendant ordered plaintiff on board of said caboose, and placed him in close proximity to said explosive substance, and put him in imminent danger of his life. That the defendant was grossly careless and negligent in storing and carrying said explosive substance in said caboose, and in ordering plaintiff near it without plaintiff's knowledge, and in using a defective engine, and in the negligent and careless management of said engine; and that defendant was grossly careless and negligent in not warning plaintiff of the danger to which he was exposed; and defendant was negligent and careless in allowing said explosive substance to remain in a place where it was probable and likely that it would be exploded by sparks coming from said engine, which would be likely to fall therein and thereon.' The appellant, in its answer, admitted that it was a corporation operating a railway as a common carrier, as alleged by respondent, but denied all the remaining averments of the complaint. And by way of defense the appellant alleged that, if the respondent was injured in any manner while in the employ of the appellant, such injury was occasioned by his own want of care and contributory fault, and that any such injury so received was the result of the ordinary risk which the respondent assumed by reason of his employment. The new matter set up in the answer was controverted by the reply. A trial of the issues involved was had to a jury, resulting in a verdict and judgment for the plaintiff (respondent here) for $1,200.

At the close of respondent's testimony the appellant challenged the legal sufficiency of the evidence, and moved the court to take the case from the jury, in accordance with section 4994, Ballinger's Ann. Codes & St. This motion was denied, and the appellant excepted. The motion was renewed at the close of the evidence, and again denied by the court, and the appellant now contends that the trial court erred in refusing to discharge the jury, and direct the entry of judgment in favor of appellant, as requested. In support of this contention it is urged that there was absolutely no proof at the trial of the particular negligence with which appellant was charged in the complaint, and that there was, therefore, as a matter of fact, nothing for the jury to determine. In proof of appellant's position it is asserted that paragraph 6 of the complaint not only designates the specific negligence on the part of the appellant which is relied on for a recovery, but avers that such negligence was the proximate and only cause of the explosion which resulted in the injury to the respondent; and that, in view of these particular allegations of negligence, all the other averments of the complaint respecting the placing of the giant powder in the caboose, and the want of knowledge on the part of the respondent of its presence there, are mere matters of inducement, and are made to show that the respondent did not assume the risk of an explosion by riding in the caboose. This objection was made and decided adversely to the contention of the appellant in Allend v. Railway Co., 21 Wash. 324, 58 P. 244, in which case the plaintiff sued the appellant here to recover damages occasioned by the same explosion, and in which the complaint contained substantially the same allegations of negligence as are set forth in the complaint herein, and now under consideration. In that case it was held that the plaintiff was not precluded by such allegations as those set out in paragraph 6 of the complaint from proving any other negligence alleged in the complaint. That case is decisive of the point here in question, and no further argument of the proposition is necessary.

It is true, as claimed by appellant, that there was no proof whatever at the trial that the engine in question was negligently managed, but there was certainly some proof which, unexplained as it was, tended to show that it was in a defective condition; the undisputed testimony being that 'there were a lot of sparks flying all the time' from the engine. It is claimed, however, that, inasmuch as there was no evidence that any one saw a single spark from the engine come into the caboose or fall upon the paper which was ignited in the box of dynamite, no inference that the locomotive engine was defective could be drawn from the mere fact that it emitted sparks. It is, we think, a sufficient answer to this proposition to simply observe that that was a question for the jury to determine, in view of all the circumstances, under proper instructions by the court. But it is further insisted that, even if it be true that the emission...