Shafer v. Tacoma Eastern R. Co.

• Decision Date: 12 May 1916
• Docket Number: 12974.
• Court: Washington Supreme Court
• Parties: SHAFER v. TACOMA EASTERN R. CO.

157 P. 485

91 Wash. 164

SHAFER v. TACOMA EASTERN R. CO.

No. 12974.

Supreme Court of Washington

May 12, 1916

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Emory F. Shafer against the Tacoma Eastern Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Govnor Teats, Leo Teats, and Ralph Teats, all of Tacoma, for appellant.

Geo. W Korte, of Seattle, for respondent.

MORRIS C.J.

Appeal from a judgment of nonsuit. On Sunday, July 12, 1914 respondent was attempting to raise a derailed engine. Appellant, living nearby, was attracted to the scene through curiosity. Using his own language:

'I came over to see what was going on. I went out there to see something unusual; something great. I expected to see a demonstration; see something different from what I usually saw about lifting things. In the lifting of a big thing like that there was an element of danger connected with it; that something might break or give way that I would be apt to see if I was around in a safe place.'

Appellant was not the only one attracted to the scene. Many others were led to visit the place as spectators, crowding in upon the workmen until a policeman drove them back telling them to keep back on account of the danger. Appellant finally took a position on the edge of the borrow pit, about 50 feet away from the derailed engine, assuming he was in a safe position and could see all that took place. The method employed was to attach a cable from the wrecking train to the boiler of the engine and then pull toward the track with a rolling movement. In placing the cable around the engine boiler it was placed back of some lugs against which, on one of the pulls, the cable slipped. On making another pull the lug snapped and was hurled to where appellant was standing, inflicting the injuries complained of.

The place where appellant was standing at the time he was injured was just off from the railway right of way, and it is contended, first, that his right of action is based upon the rule requiring those engaged in the use of machinery to use a proper degree of care to prevent injury to persons on adjoining property, and those passing on adjacent streets--citing Truck & Dray Co. v. Hoeffer, 2 Wash. 45, 25 P. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842, Birkel v. Chandler, 26 Wash. 241, 66 P. 406, Metz v. Postal Telegraph Co., 73 Wash. 188, 130 P. 343, and like cases from this and other courts. These cases have no application because of the lack of important essentials--failure to warn and lack of knowledge of the dangerous situation. Here there was both a warning given, and appellant frankly admits he knew there was an element of danger in the work, and it was, partly at least, because of this that he was attracted to the scene. Appellant was a mere licensee or volunteer, and his presence at the spot where he was injured is best understood by referring to his testimony previously quoted. It is this that determines the law against him. He appreciated the presence of danger, which means that the law charges him with the natural results of the think he appreciated and understood. Knowledge of danger is in law knowledge of the dangerous results naturally and proximately flowing from that danger. Nordstrom v. Spokane & I. E. Ry. Co., 55 Wash. 521, 104 P. 809, 25 L. R. A. (N. S.) 364. From his own testimony it is clear that appellant knew and appreciated the dangerous situation. In fact, that was one of the attractions exciting his curiosity and inducing his presence. Knowing he was submitting himself to a known danger would be a voluntary submission to the natural and proximate results flowing from the danger.

In determining respondent's negligence we must determine the duty it owed to appellant, since negligence occurs only where there is a breach of legal duty. That duty in the case of licensees and volunteers is not to willfully or wantonly injure. Not failing in this duty, responsibility for appellant's injury cannot be fastened upon respondent.

Appellant further contends his case is analogous to those where persons upon adjoining property are injured by articles thrown from moving railway trains. Negligence in those cases is predicated upon the duty of a railway company to keep its trains and other dangerous instrumentalities upon and within its right of way. This duty is due not only to owners of adjoining property, but to those who may be upon such property anticipating no danger and relying upon the duty of the railway company to protect them. The law always requires of any property owner the exercise of ordinary care in the use of his property and the agencies operated thereon so as not to injure property or persons on abutting premises; but that duty is not extended to those who voluntarily and knowingly make themselves a part of a dangerous situation attracted by no motive other than curiosity or amusement. Such persons must take the risk as they find it, and cannot successfully complain of the...