Vinnette v. Northern P. Ry. Co.

• Decision Date: 11 October 1907
• Parties: VINNETTE v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

91 P. 975

47 Wash. 320

VINNETTE v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

October 11, 1907

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Joseph E. Vinnette against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Carroll B. Graves, for appellant.

Geo. P Rossman, for respondent.

CROW J.

Action by Joseph E. Vinnette against the Northern Pacific Railway Company to recover damages for the death of plaintiff's child. The plaintiff alleged that his daughter, six years of age, was struck and killed by a backing train of freight cars while crossing defendant's tracks within the limits of the city of Seattle upon a platted street, and upon a crossing used and traveled by the the general public; that a city ordinance then in force prohibited the running of any steam engine and cars in Seattle at a rate of speed exceeding six miles per hour; that the defendant was backing a train of about 16 cars at a greater rate of speed that the defendant had no person on the lookout at the forward end of the train as it was moving backward; that no signal was given, by bell, whistle, or otherwise; and that the child, being rightfully upon the alleged street and crossing, was killed by reason of such negligent acts of the defendant. The answer, after admitting the killing of the child, denied other material allegations of the complaint and affirmatively alleged that the child was a trespasser upon the railway tracks situated in defendant's switching yards, and that her death was occasioned by the negligence of her parents, who then and there permitted her to play along and upon the tracks. The reply denied the affirmative allegations of the answer. On trial the jury returned a general verdict in favor of the plaintiff for $600, and made special findings in answer to interrogatories submitted as follows: 'At what rate of speed was the string of cars moving at the time it struck the child, Catherine Vinnette? A. About six miles an hour. At the time mentioned in the complaint, and for some time prior thereto, was the switch track, lying to the west of the main track at and near the point of the accident, used for the purpose of switching and storing cars? A. Yes. Did the men in charge of the string of cars, or either of them, have any knowledge of the child's whereabouts, prior to the collision with her, and did they know of the accident before their attention was called to it after the child had been killed? A. No. Who was left in charge of the child, and had the custody of the child, the morning of the accident, and just prior to the accident? A. Her mother. If you answer to the last interrogatory that it was the mother of the child, find and state if the mother allowed the child to cross said railway track and enter into play with some other child or children near and in the vicinity of the railway tracks of the defendant, and across said tracks from its home. A. Yes.' From a judgment entered on the general verdict, the defendant has appealed.

The appellant's assignments of error present the single question of the sufficiency of the evidence to sustain the general verdict and judgment. The evidence shows that appellant had, when the accident occurred, two lines of railway track, running in a northerly and southerly direction, and used exclusively for distributing, moving, and storing freight cars; that all trains enter and leave the city on other lines; that one of the tracks was known as the 'shore line,' from which numerous spurs extended to various warehouses and industrial plants; that the other was known as the 'long siding,' being used for switching and storing cars; that the two tracks, being substantially parallel, were located side by side on a graded strip of land about 30 feet wide, between a high bluff or hill to the east and tide lands to the west; that the soil of the hillside is sustained by bulkheads; that the west line of the grade is sustained by a sea wall; that quite a number of small houses or shacks are located along the tracks, abutting the same on either side, those to the west being over tide lands and supported by piling; that a few feet further west is a public street or boulevard, located on an elevated bridge constructed on piling over tide lands, and occupied in part by a street car line running into the city of Seattle; that respondent's house is built on piling between the railroad track to the east and the boulevard to the west that he had access to the boulevard; that to the east of his house, towards and abutting the railway, he has a small dooryard, floored with boards resting on piles, and inclosed with fence and gate. There was no competent evidence that any street had ever been platted, opened, graded, or maintained in the space occupied by appellant's tracks between the sea wall and hill, nor that such space had ever been traveled by teams or used for general public traffic. There was evidence, however, showing that people living in the small houses and shacks above mentioned frequently crossed and walked along the tracks at various points according to their own convenience. The evidence further shows that at the time of the accident a switching crew was backing about 16 freight cars on the long siding; that respondent had left the child in charge of his wife, its mother, at their home, who permitted her to cross the tracks to the hill on the opposite side and play with other children; that, after watching the child go across, the mother went into her kitchen, leaving the door open; that shortly thereafter the train backed down the long siding, when the child, returning alone and unattended, stepped on the track and was killed; that no employé of the appellant saw the child until after the accident; that no employé was on the car which struck the child; and that appellant made no claim to ringing its bell or sounding its whistle, its employés being engaged in moving freight cars within its switching yards, and not, according to its contention, upon any public street or highway. The only substantial conflict in the evidence was over respondent's contention that a well-defined pathway existed, which was used by the general public and intersected the tracks immediately in front of his house. In his brief the respondent continually assumes the existence of a highway, called 'Ninth street,' upon which the railway tracks were located, and upon which his house fronted to the east; but there was no competent evidence showing that any such street ever existed. Respondent contends that, at the time the child was killed, she was on Ninth street opposite his house, on the above-mentioned alleged pathway, that had been used by the public for many years. There was evidence given by different witnesses to the effect that people, both adults and children, living in the immediate neighborhood, had frequently crossed the tracks; but the...