Stevick v. Northern P. Ry. Co.

• Citation: 81 P. 999,39 Wash. 501
• Parties: STEVICK et al. v. NORTHERN PAC. RY. CO. et al.
• Decision Date: 07 August 1905
• Court: United States State Supreme Court of Washington

81 P. 999

39 Wash. 501

STEVICK et al. v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

August 7, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Minnie Stevick and others against the Northern Pacific Railway Company and another. From a judgment for plaintiffs against the company, it appeals. Reversed.

B. S Grosscup, Jas. F. McElroy, and A. G. Avery, for appellant.

Benson & Hall, for respondents.

MOUNT C.J.

This action was brought to recover damages on account of the death of Jesse L. Stevick, who was a brakeman in the employ of the Northern Pacific Railway Company. Stevick was killed while attempting to make what is called a 'flying switch,' at Argo, on October 16, 1903. The action is based on alleged negligence of the defendants. The complaint states a joint cause of action against the two defendants, alleging, in substance, that the defendant David Gregg was the master mechanic, agent, and servant of the defendant Northern Pacific Railway Company, having charge of its roundhouse and repair shops at Seattle, and charged with the duty of making all necessary repairs to engines whenever they were reported out of order; that the defendant railway company was the owner and operator of engine No. 163, which was defective in that the piston valves were in a dangerous and leaky condition, and emitted large quantities of steam; that the defective condition of said engine was reported to David Gregg several times prior to the death of Stevick; that the defendants, and both of them, negligently failed to repair said engine, or in any manner to stop the said leakage of steam therefrom; that on the 16th day of October, 1903, while an effort was being made by said Stevick and a fellow brakeman to switch a caboose to a side track, the said engine leaked steam so badly that a brakeman (Quinn) who was to throw the switch for the purpose of putting said caboose on the side track was prevented by escaping steam from seeing whether the caboose had been uncoupled from the engine. Believing that they were separated, he threw the switch immediately after the engine passed over the same whereby the caboose, which had not been uncoupled, was thrown from the track, and Stevick was killed. The answer of the railway company admitted that the defendant Gregg was its master mechanic at Seattle, charged with the repair of all its engines, and denied all the allegations of negligence but admitted that the brakeman Quinn threw the said switch while the engine and the caboose were coupled together, thereby throwing the caboose from the track and killing Stevick. It also set up affirmative defenses of contributory negligence, assumption of risk, and the negligence of a fellow servant. The answer of defendant Gregg admitted that he was the master mechanic of the defendant railway company, charged with the duty of keeping its engines in proper repair, and denied all the allegations of negligence charged in the complaint. Plaintiffs' reply denied the affirmative matter charged in the answer of the railway company. Upon these issues the cause came on for trial before the court and a jury. At the close of plaintiffs' evidence the defendants each challenged the sufficiency of the evidence, and moved for a directed verdict. This motion was denied. After the evidence on behalf of the defendants had been introduced, the same motion was renewed and denied. The cause was thereupon submitted to the jury, and a verdict was rendered against the Northern Pacific Railway Company for $3,250, and in favor of defendant Gregg. Defendant railway company thereupon moved for a dismissal of the action upon the ground that the verdict in favor of defendant Gregg amounted in law to a discharge of defendant railway company. This motion was denied, and a judgment entered against the railway company upon the verdict. This appeal is from that judgment.

Appellant assigns error upon the refusal of the court to direct a verdict at the close of plaintiffs' evidence, because the evidence shows (1) that the negligence of Stevick himself contributed to his death; (2) that the negligence of a fellow brakeman was the proximate cause of the injury; also that the verdict in favor of defendant Gregg was a discharge of the defendant railway company. The positions of the appellant upon the first and last grounds stated must be sustained. It appears from the evidence that early on the morning of October 16, 1903, engine No. 163 and a crew consisting of the engineer, fireman, conductor, and two brakemen, one of whom was Stevick, left Seattle with a caboose attached to the engine, under orders to make up a freight train at Argo, a freightyard just outside the city limits of Seattle. This crew arrived at Argo about 4 o'clock in the morning. It was still dark, and the...