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

• Decision Date: 29 March 1909
• Citation: 100 P. 747,52 Wash. 350
• Court: Washington Supreme Court
• Parties: SMITH v. SPOKANE FALLS & N. RY. CO.

100 P. 747

52 Wash. 350

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

Supreme Court of Washington

March 29, 1909

Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Action by A. W. Smith against the Spokane Falls & Northern Railway Company. Judgment of nonsuit, and plaintiff appeals. Reversed.

Fred Miller and Robertson & Rosenhaupt, for appellant.

L. C Gilman and A. J. Laughon, for respondent.

DUNBAR J.

The plaintiff was in the employ of defendant, as foreman of a gang of men whose duty it was to fix tracks, pick up wrecks and generally assist in the repair of the roadbeds where wrecks, washouts, and other damages had occurred. The plaintiff had been in the employ of the defendant company before, but during his absence the defendant erected a large coal bunker near its track at Valley station. The coal was taken from the bunker by means of chutes which were pulled down and balanced by heavy iron weights handing beneath them. These weights were attached in such a manner that, when the chute was put back in place after having been emptied of coal into the tender of the engine being supplied, they would at places project beyond others towards the track and come very close to the sides of the box cars standing or passing upon the track, some as close as 15 inches. The plaintiff was in charge of 9 ordinary box cars with between 50 and 60 Italian workers in them. The men slept and ate in the box cars, and were moved from place to place in said cars. The plaintiff testified that, when approaching the above-mentioned coal bunker and station at Valley, his attention was called to a noise made by some one hallooing and to the rolling of the cars in which they were confined, and that, in order to discover the cause of the alarm, he put his head out of the side door of the box car, and was struck on the head by the weight of one of the coal chutes, injuring him, for which injury this suit was brought. At the close of plaintiff's testimony, judgment of nonsuit was granted on motion of the defendant, and this appeal follows.

It may be said that the only was of ingress to or egress or observation from the cars in question was by the side doors. It was the contention of the respondent, and so expressed in its motion, that there was no proof establishing on the part of the appellant any want of care or any negligence of the respondent. The court took the view: That there was no testimony showing that the appellant was acting in the discharge of his duty when he put his head outside of the car; that he was an employé simply being transported, was not in charge of the train, and was in no wise authorized to direct its movements; and that when he put his head out of the car he was guilty of contributory negligence which would bar his recovery. The record shows, and it was conceded, that the coal chute in question was dangerously near the track, and it was further conceded that the appellant did not know it was there. This chute was some nine inches nearer than the minimum distance of the ordinary chute, and the principal question discussed is whether the appellant was in the line of his duty when he put his head out of the door; the contention of the respondent being, as was indicated by the court, that he was not in charge of the train in any way, and that his cars were attached to freight cars which were in charge of regular officers. The testimony is not as definite as it might be as to what the duties of the appellant were, but he did testify that his duty was that of doing work and looking after the men. In describing the affair the appellant testified as follows: 'Q. Now, just state what happened on this evening, Mr. Smith. A. As we approached Valley station, the train gave a roll, and there was a noise, some one talking or hollering, and I looked out the door. * * * I just looked out and looked around to see what was up. * * * I came in contact with a weight on the coal chute at the back of my head. * * * In pulling into Valley station on the 7th day of August, 1906, the car gave a roll, and I looked out to see what was up. Some one called loud or something, and I gets up in the car and looks out, and the minute I looks out the car gave a kind of roll and the weight--the weight piece, it is like a weight--I don't know what it is, but it is like a weight, attached to the coal chute, it was very close, and it cut my head there, and it knocked me to my knees in the car and came very near driving me out.' The appellant also testified that there was no way of looking out of these outfit cars excepting by the side doors, and that that was the usual way in which employés performed the duty of seeing if anything was the matter with the train while the train was in motion. Again, in describing the affair, he testified: 'It was my duty to see none were hurt. I heard a cry, and the car was beginning to roll, and I stepped to the door to look out, and some one...