Weckter v. Great Northern Ry. Co.

• Citation: 102 P. 1053,54 Wash. 203
• Court: United States State Supreme Court of Washington
• Decision Date: 15 July 1909
• Parties: WECKTER v. GREAT NORTHERN RY. CO. et al.

102 P. 1053

54 Wash. 203

WECKTER v. GREAT NORTHERN RY. CO. et al.

Supreme Court of Washington

July 15, 1909

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

Action by Amelia M. Weckter, as administratrix of H. A. Weckter deceased, and on her own behalf, against the Great Northern Railway Company and another. From a judgment for defendants plaintiff appeals. Affirmed.

A. H Plummer and F. H. McDermont, for appellant.

F. V. Brown, A. J. Laughon, and J. J. Lavin, for respondents.

RUDKIN C.J.

On the 10th day of October, 1908, H. A. Weckter, husband of the plaintiff, Amelia M. Weckter, was in the employ of the Great Northern Railway Company as a brakeman, and met his death on the evening of that day while in the performance of his duty. This action was instituted against the company and one of its locomotive engineers to recover damages for wrongfully causing the death. As near as can be ascertained from the circumstantial evidence found in the record, the death of the brakeman resulted from a fall from the hindmost of three cars switched from what is called the 'passing track' to the 'industrial track' on the line of the defendant company's road at Deer Park, in this state. The negligence charged in the complaint was in substance that the engineer in charge of the train upon which the deceased was braking was incompetent, that the defendant company had knowledge of such incompetency, and that the engineer negligently, carelessly, and without warning crashed into the cars upon which the deceased was braking, thereby throwing him from the train and causing his death. At the close of the testimony the court directed a judgment in favor of the defendants, and the plaintiff has appealed.

The sufficiency of the evidence to warrant the submission of the case to the jury is the sole question presented for our consideration. There were three tracks, running north and south, on the line of the respondent company's road at Deer Park, where the accident happened, viz., the westerly track, called the 'main track,' the middle track called the 'passing track,' and the easterly track, called the 'industrial track.' The industrial track was connected with the middle or passing track by a switch a short distance south of the Deer Park depot. The testimony on the part of the appellant tended to show substantially the following facts: A number of witnesses testified that about 7 o'clock on the evening in question they heard cars come together in the yards at Deer Park with an unusual crash. The crash was so unusual that it attracted the attention of the witnesses, and some of them testified that it shook the buildings at a considerable distance from the tracks. Several of these witnesses were indoors at the time, and none of them saw the cars that came together, or knew which of the three tracks the cars were on. They all testified, however, that the sound came from the general direction of the switch connecting the passing track with the industrial track south of the depot. They further testified that they learned of the death of the brakeman about 10 or 15 minutes after hearing the crash in question. Another witness testified that he was standing in front of a drug store some considerable distance from the switch, and saw some person going up the side of one of the cars with a lantern a few seconds before the crash testified to by him and the other witnesses; but who the person was, or what car or track he was on, the witness did not know. The front brakeman was called as a witness by the appellant, and testified that he last saw the deceased brakeman alive as he was climbing up the side of one of the cars switched onto the industrial track, with his lantern in his hand, and that the death of the brakeman was reported to him about 10 or 15 minutes later. The body of the deceased was found along the outer side of the industrial track a considerable distance back from the switch. Blood and hair were found on the outer rail of the industrial track about 130 feet back from the switch, the lantern carried by the deceased was found on the top of one of the cars, and his keys and some other of his effects were found scattered along the track between the point where the blood and hair were discovered on the track and the place where the body was found, some distance further back. Expert testimony was offered tending to show that it would have been the duty of the deceased brakeman to be on the top of the cars switched onto the industrial track for the purpose of setting the brakes, and that if the engine or train collided with the cars on which the deceased was standing with the force testified to by the several witnesses the crash would result in hurling or throwing him from the car. This we think is a fair statement of the appellant's case, aside from testimony tending to show incompetency on the part of the engineer and the company's knowledge of such incompetency. At the close of the appellant's case the court denied a motion for nonsuit, with permission...