Welsh v. Spokane & I. E. R. Co.

• Decision Date: 20 May 1916
• Docket Number: 12869.
• Court: Washington Supreme Court
• Parties: WELSH v. SPOKANE & I. E. R. CO.

157 P. 679

91 Wash. 260

WELSH v. SPOKANE & I. E. R. CO.

No. 12869.

Supreme Court of Washington

May 20, 1916

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by John Welsh against the Spokane and Inland Empire Railroad Company. There was a directed verdict for defendant and from an order granting plaintiff a new trial, the defendant appeals. Reversed and remanded.

Graves Kizer & Graves, of Spokane, for appellant.

Samuel T. Crane and John Salisbury, both of Spokane, for respondent.

ELLIS J.

Action to recover damages for personal injuries. The material facts are as follows: On October 5th, 6th, and 7th, plaintiff was at St. Maries, Idaho, where he indulged freely in intoxicating liquor during the 6th and up until 2 o'clock in the afternoon of the 7th, when he boarded a boat for Coeur d'Alene. He had no liquor with him, nor procured any while aboard the boat. Arriving at Coeur d'Alene he started for the depot. Not knowing where it was, he inquired of a man on the street, who volunteered to show him. At the depot he purchased a ticket for Spokane and checked his baggage. His train not having arrived, he and the new acquaintance went across the street, where he had two or three drinks. After that they returned to the sidewalk to await the train. He remembers he knew when it arrived, that he staggered, and that his new friend and one of the train crew assisted him into the car, the latter remarking that he was 'pretty full.' Plaintiff slept throughout the journey from Coeur d'Alene to Spokane. He had no liquor after leaving Coeur d'Alene. Apparently after the train had come to a stop at Main and Stevens streets in Spokane, a trainman awakened him and informed him of the arrival. He was sober enough to know that the passengers were getting off the car, and that there were quite a number of them. He also knew and remembered that he occupied the second seat in the front car, and that he followed the other passengers from the car. After stepping to the street he seems to have turned and leaned against the car with his face to the car and his right foot on the track immediately in front of a truck. He knows he did not stand that way very long, and thought all the passengers got off the train. He testified that he knew what was going on, and that he could he knew what talk at the time. The train was started and ran over his right foot throwing him to the ground and crushing and bruising all the toes and a portion of the foot above the toes. He was immediately taken to the Emergency Hospital, and all of the toes except the great toe on his right foot were amputated. The surgeon who operated and his assistant both testified that plaintiff was intoxicated when brought into the hospital; that he could not talk; that he staggered, that he did not seem to feel the pain and required no anaesthetic during the operation. At the close of the testimony the defendant moved for a directed verdict. The motion was granted, and the jury was discharged. Plaintiff then moved for a few trial. This motion was likewise granted. From the order granting a new trial defendant appeals.

Appellant contends that respondent's evidence was insufficient to make a prima facie case, and that the granting of the motion for a new trial was therefore error. The order granting a new trial was based upon the express ground that under the circumstances defendant owed plaintiff the duty of using a degree of care commensurate with his condition, and that in view of that condition the relation of passenger and carrier had not terminated at the time of the injury, and that the case should have been submitted to the jury. The car on which respondent was a passenger was one of an electric interurban train. The rule applicable to street cars governs in determining when the relation of carrier and passenger ends as to one alighting in a street from an interurban train. In the absence of any unusual inherent danger, defect, or obstruction in the place of alighting, that relation ceases upon the alighting passenger gaining a secure and maintainable footing upon the street. Nellis, Street Surface Railroads, page 449; Gannaway v. Puget Sound Traction L & P. Co., 77 Wash. 655, 138 P. 267. Clearly, unless continued by respondent's intoxication, the relation of carrier and passenger had ceased at the time of the injury.

It is argued, however, that respondent's condition was such as to impose on the carrier the duty of extraordinary care for his safety, even after the relation of carrier and passenger otherwise would have ceased. Respondent cites and mainly relies upon the case of Sullivan v. Seattle Elec. Co., three times appealed to this court and reported in 44 Wash. 53, 86 P. 786, Id., 51 Wash. 71, 97 P. 1109, 130 Am. St. Rep. 1082, and Id., 56 Wash. 407, 105 P. 825. That case, however, is readily distinguishable upon the facts. Deceased was visibly crazed with drink, and was plainly incapacitated by his intoxication. That condition continued up to the very time when he was finally permitted to alight alone on a platform partially unguarded, over the waters of a lake some 26 feet deep and near 10 o'clock on an extremely dark night. The defendant's servants had actual knowledge of his helpless condition up to the very time of his leaving the car and of the dangers of the locality. The question whether the place was reasonably safe for discharging a passenger in his known condition was held one for the jury. True, on the first appeal this court said:

'The rule is that a carrier owes to a passenger a duty commensurate with his condition. After it receives a passenger who is helpless or incapacitated, it must exercise towards him that degree of care necessary to keep him from harm. A carrier is not obligated to receive a helpless, imbecile, or drunken person as a passenger, when unattended, but if it does so receive such a one, it must give him such care as will insure him a safe passage to some proper designation. It cannot lawfully put him off, or permit him to get off, at a place where there is danger of his perishing or coming to harm, even though such a place would be reasonably safe for one in a normal condition. In this case whether the carrier exercised this degree of care towards the deceased was a question for the jury, and the court erred in taking it from them.'

But that is far from saying that there would be any negligence in allowing even a drunken man to alight at his destination, with many other passengers on a safe and unobstructed city street. The language above quoted was used in the light of the facts there involved. With full knowledge of the man's condition and of the dangers of the locality, the conductor ought to have anticipated the very accident which happened. At any rate the question of negligence was one for the jury. The distinction which we have marked is made clear in the opinion on the second appeal of the Sullivan Case, reversing a judgment for plaintiffs because of an instruction to the effect that if defendant's servants knew of Sullivan's helpless condition, 'or by the exercise of reasonable care--that is, such care as a reasonably prudent person engaged in like occupation would ordinarily exercise under similar circumstances to ascertain the condition of a passenger--should have known that he was in such an intoxicated condition as to be unable to care for himself,' then it was their duty to take such precautions for his safety as required by surrounding circumstances. We said:

'This instruction is erroneous. A conductor has a right to presume that every passenger entering his car is both sane and sober until he has actual notice to the contrary. He is not compelled to take a mental or physical examination to ascertain his condition, and the doctrine of imputed or implied notice has no application to such a case.'

We then quoted with approval the following:

'If a passenger voluntarily becomes intoxicated, the law does not impose the duty on the common carrier to place a guard over such passenger to prevent him from injuring himself, or placing himself in a place of

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