Steele v. Northern P. Ry. Co.

• Decision Date: 24 June 1899
• Citation: 21 Wash. 287,57 P. 820
• Parties: STEELE v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

57 P. 820

21 Wash. 287

STEELE v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

June 24, 1899

Appeal from superior court, Yakima county; John B. Davidson, Judge.

Action by Harry A. Steele, a minor, by guardian ad litem, against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Crowley & Groscup and Whitson & Parker, for appellant.

Graves & Englehart, for respondent.

DUNBAR, J.

This is an action brought in the superior court of the state of Washington, in and for the county of Yakima, by H. A. Steele a minor, by Mrs. O. O. Steele, his guardian ad litem, as plaintiff, against the Northern Pacific Railway Company, as defendant. The complaint alleges that H. A. Steele was walking along the public streets of the city of North Yakima across the railway track of the defendant, to a coal yard and that, as he was crossing the track, the defendant carelessly and negligently caused several cars coupled together to pass rapidly over said railway track at or near the crossing, and omitted to give any signal, by ringing a bell or sounding a whistle, or in any other way warning said Steele of the approach of the detached cars, and that he was not aware that said cars were approaching the crossing upon which he was walking; that, in consequence of such negligence and carelessness on the part of the defendant, the cars struck Steele, knocking him down and injuring him in the manner specifically described by the complaint. The answer denies the allegations of the complaint in reference to the negligent acts on the part of the railroad company, and affirms contributory negligence on the part of Steele. It alleges that, while he was attempting to get on the cars, he went upon the track of the defendant without its prior knowledge, and without looking to see whether cars were running on said track or not, although, by looking, he could easily have seen the approaching cars on the track in time to have escaped being struck by them, and that while so on the track, and attempting to get on said cars, he was thrown down and injured to some extent; that Steele had been warned by the defendant company to keep away from said cars, and that the accident was occasioned solely by his contributory carelessness and negligence in attempting to get upon said track without looking to see whether a train or cars were approaching, and for the purpose of getting unlawfully upon said cars, and riding thereon, without the consent or knowledge of the defendant. The reply put in issue the affirmative allegations of the answer. A verdict was rendered in favor of the plaintiff in the sum of $1,340.

The assignments of error are--First, that the court erred in refusing to instruct the jury to find a verdict for the defendant, for the reason that the plaintiff affirmatively showed by his own testimony that he was guilty of contributory negligence, and failed to show any negligence on the part of the defendant; second, error in the giving of certain instructions, which will be noticed hereafter.

The testimony in relation to the attempt by the boy Steele to steal rides upon the cars is contradictory, and, if essential, that questions has been settled by the jury. So that we view the case from the standpoint of the statement of the appellant in its brief, which, after mentioning the fact that the respondent, with other boys, was playing marbles upon the track, is as follows 'Afterwards he and a lad named Jahnny McCutcheon started across the track to go to the coal yard. This was about dinner time. At the place where they attempted to cross there was a clear view up and down the track for a long distance. To the south of the crossing, at a distance of about 100 feet, at this time stood a freight train. The railroad men had been switching in the yards, and just about this time five or six cars were dropped down the main track, the engine going off on a side track. The switch where the engine parted from the cars was about 100 feet from the place where plaintiff attempted to cross. The cars were loaded with rock, and came down the main track at a rate of from two to four miles per hour. The engineer and fireman were on the engine, which went down the side track, and there were two brakemen on the cars coming down the main track, one being at the rear end of the first car, in charge of the brake, and the other further back on the train. These cars and the engine were in plain sight from the place where the plaintiff attempted to cross. There was no obstruction in the way. The plaintiff stopped on the track for some reason, and was struck by the cars coming down, knocked down, the cars passing over him.'

The testimony shows that the company was engaged, through its operators, in what is termed in railroad parlance 'switching the freight cars.' In this case the boy saw the train coming about 75 or 100 feet from him, but, as the train approached, the engine came down the side track, and the detached cars came down the main track, and, while the testimony shows that the detached cars had brakemen on them, it also shows that the brakemen were at the rear end of the cars, and that they could not see the track in front of them, because of its being obstructed by the load in front, and hence they afforded no protection to passers-by, so far as any lookout is concerned. It is earnestly contended by the appellant that the company was not guilty of contributory negligence in thus sending its cars, detached, down this track and across the crossing. We do not think this contention can be sustained. The great weight of authority is to the effect that it is negligence on the part of a railroad company to switch cars, unattended, down tracks in a populous city, where many people are crossing the tracks over which the detached cars are switched. 'It is at all times and in all places an operation attended with more or less danger. * * * The making of a running switch in the crossing of a street of a populous town or village, where there is constant travel, and more especially where there are obstacles cutting off the view of approaching trains, is holden to be an act of gross negligence, for which a railroad company will be held responsible, if those receiving injury thereby are themselves observing due care at the time, and in no manner, by their own act or omission, contribute to the injury. And it is gross negligence for a brakeman to be absent from his post on the car at the time of making such a switch, or, if present, the negligence is equally great if he fails to obey the proper signals given for the government of his conduct.' Rorer, R. R. p. 491. In this case, as we have before said, the brakemen were in a position where they could not observe the track, and no signal or notice of any kind was given. 'Permitting cars to run over a crossing, after being detached from a train which had previously passed, whereby a traveler is injured,--a fruitful source of mischief,--has been condemned as negligence.' 1 Thomp. Neg. 423. In fact, this question was passed upon squarely by this court in the case of Roth v. Depot Co., 13 Wash. 525, 43 P. 641, and 44 P. 253, and there are many features in that case which are identical with some of the prominent circumstances of this case. The testimony in this case shows that the crossing was a public thoroughfare; that about one-third of the people in North Yakima live on the west side of the track, and about two-thirds on the east side of the track: that the business portion of the town is principally upon the east side, and that the people on the west side cross the track in going to and returning from the business portion of the town; that one of the principal school houses is on the west side of the track, and that the path or track across which this switching was done is daily crossed by school children and other citizens of the town; that some business houses, such as lumber yards and coal yards, are situated on the west side, right opposite this track. In fact, the boy in this case had been sent by his mother, living on the east side, on an errand to obtain some coal from a coal yard on the west side, at the time this accident happened. So we think that we need not discuss further the question of negligence on the part of the company in sending their cars down, substantially unattended, across this well-traveled road.

A closer question, however, is whether or not the boy in this case was guilty of contributory negligence to such an extent that the court would have been justified in taking the case from the jury, and holding that, as a matter of law, his acts constituted contributory negligence, and that no recovery could be had. It is insisted by the appellant that this case falls within the rule laid down by this court in Railroad Co. v. Egley, 2 Wash. St. 409, 26 P. 973. But in that case the plaintiff was a naked trespasser, attempting to board the train of the defendant, and unknown to the servants of the company, and was hurt while engaged in such unlawful business. We do not think that the principles involved in that case bear upon the case in point in any degree. It must be admitted that the authorities are not uniform, so far as the question of contributory negligence is concerned, but the great weight of authority is to the effect that, before a court will be justified in taking from the jury the question of contributory negligence, the acts done must be so palpably negligent that there can be no two opinions concerning them, and this distinction must not be lost sight of between the case at bar and many of the cases cited by the appellant, where the plaintiff had failed to look and listen as he approached a railroad track; many of the courts holding that the railroad track itself...