Walters v. Spokane Intern. Ry. Co.

• Decision Date: 06 May 1910
• Citation: 58 Wash. 293,108 P. 593
• Court: Washington Supreme Court
• Parties: WALTERS v. SPOKANE INTERNATIONAL RY. CO.

108 P. 593

58 Wash. 293

WALTERS v. SPOKANE INTERNATIONAL RY. CO.

Supreme Court of Washington

May 6, 1910

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Katie Walters, for herself and as guardian ad litem for others, against the Spokane International Railway Company. From a judgment for plaintiff, defendant appeals. Reversed unless plaintiff accepts a reduced verdict, in which event judgment for the reduced sum is affirmed.

Allen & Allen and Graves, Kizer & Graves, for appellant.

Charles P. Lund and Hamblen & Gilbert, for respondent.

CROW J.

This action was commenced by Katie Walters, in her own behalf and as guardian ad litem of John S. Walters and William H Walters, minors, against the Spokane International Railway Company, a corporation, to recover damages for the death of William H. Walters, husband and father of the plaintiffs. From a judgment in their favor, the defendant has appealed.

William H. Walters, while serving the appellant as head brakeman on a freight train, was so badly scalded in a derailment of the engine on which he was riding that he died the next day. The respondents alleged the accident was due to negligence of appellant in permitting its roadbed, track rails, and ties to be and remain in an unsafe condition. The appellant alleged that the accident occurred in Idaho; that under the laws of that state William H. Walters was a fellow servant of George E. Kendall, the engineer, who caused the wreck by negligently running the train at a dangerous speed, and that Walters was guilty of contributory negligence in failing to set the brakes. The jury returned a verdict for $20,000, and answered interrogatories propounded at appellant's request, as follows: '(1) Was defendant's roadbed in a weak and insecure condition at the point where the wreck occurred? Yes. (2) If you answer that it was, state in what respects it was weak and insecure. Answer: The track was not properly surfaced and ballasted; and that a large percentage of the ties were culls; and a large percentage of the ties were of black pine, and the roadbed was too narrow. (3) Were the rails insecurely fastened to the ties at the point where the wreck occurred? Answer: Yes. (4) At what rate of speed was the train running at the time it left the rails? Answer: Between sixteen and twenty miles per hour. (5) At what rate of speed was it reasonably safe to run a train like the one that was wrecked, over the trakc at the place where it was wrecked? Answer: We are unable to state. (6) Was the wreck occasioned by a defective condition of the track and roadbed, or by the rate of speed of the train, or by the condition of the track and roadbed and the rate of speed jointly? Answer: The wreck was caused wholly by the defective condition of the track and roadbed.'- Appellant first contends the evidence was not sufficient to sustain a recovery, and that the trial court erred in denying its motion for a directed verdict. As stated by appellant's counsel, 'The record in this case is of fear-inspiring bulk.' The evidence is too voluminous to be stated in this opinion. We find sufficient to sustain a verdict in respondent's favor. There was competent evidence that appellant's track, although new, was in a dangerous condition; that inferior and unsafe ties had been used in its construction; that the rails had not been spiked to all the ties; that the track had not been properly surfaced; that the road had not been ballasted; that the train was running at a moderate and safe rate of speed, and that the unsafe condition of the track caused the rails to spread and ditch the engine. Other evidence offered by appellant tended to show that the track, although new, was safe, well constructed, and in good condition; that it was being constantly examined and repaired by appellant's employés; that the accident was caused by the act of the engineer who ran the train at a reckless and dangerous rate of speed, and that the appellant was without fault. This conflicting evidence was properly submitted to the jury, and it is manifest from their verdict and special findings that they accepted and credited the statements of the respondent's witnesses.

Immediately after the accident J. D. Lahey, the conductor in charge, went forward from the rear end of the train, saw the ditched engine, the condition of the track, rails, and ties, and the injured men. Returning to his caboose, he attempted to attach a telephone instrument to the wires, and call appellant's head offices at Spokane, 19 miles distant. Failing in this he ran about one mile to a farmhouse, where he obtained the use of a long distance telephone and occupied about 25 minutes in calling Spokane and arranging for a relief train, and assistance for the injured men. He then walked back to his train. Living at the house was one Samuel Williams, who dressed himself, and, accompanied by one Scharpenberg, followed the conductor. The accident occurred about 10:45 p. m., and it was almost two hours later when Williams reached the train. Walters, the head brakeman, and the engineer Kendall were fatally injured. They had been removed to the conductor's caboose, where they were awaiting medical assistance. Williams, as a witness for respondent, testified in part as follows: 'Q. Just state what the conductor said there at that time. A. Well he said that it was caused by a rail, the spikes pulling out and letting the rail turn over and the spreading of the track. * * * Q. What did he say at that time about the condition of the roadbed or about the company maintaining a roadbed? * * * A. Well, he said it was a bum track.' These alleged statements were admitted as part of the res gestae, and the appellant now insists that the trial court erred in overruling its objections thereto; that the statements were incompetent, immaterial, and hearsay, being made long after the accident, and that they constituted no part of the res gestae. It appears that Williams and his companion were the first persons to reach the train after the accident, other than those upon the train; that the conductor was appellant's chief representative then upon the scene and in charge of the train. He had the injured brakeman and engineer in his care. Both of them were severely injured, suffering intensely, in need of immediate medical attention, and were receiving such assistance only as the remainder of the train crew could give. The conductor was in a condition of responsibility and anxiety which directly tended to render his statements spontaneous, impulsive, and truthful, and to negative the idea that they might be the result of reflection. Appellant insists that his statements were too remote in point of time from the actual ditching of the train, to be admissible. Although it is the usual rule that contemporaneous declarations, explanatory of the principal occurrence, made under circumstances excluding the idea of premeditation, are competent as part of the res gestae, it is not always essential to their admissibility that the declarations and principal occurrence shall be identical in point of time. In many instances the former may succeed the latter by a considerable period. This court has so held in numerous cases. Roberts v. Port Blakely Mill Company, 30 Wash. 25, 70 P. 111; Lambert v. La Conner T. & T. Co., 30 Wash. 346, 70 P. 960; Dixon v. Northern Pacific R. Co., 37 Wash. 310, 73 P. 943, 68 L. R. A. 895, 107 Am. St. Rep. 810; Starr v. AEtna Life Ins. Co., 41 Wash. 199, 83 P. 113, 4 L. R. A. (N. S.) 636....