Wiest v. Coal Creek R. Co.

• Decision Date: 07 March 1906
• Parties: WIEST v. COAL CREEK R. CO.
• Court: Washington Supreme Court

84 P. 725

42 Wash. 176

WIEST v. COAL CREEK R. CO.

Supreme Court of Washington

March 7, 1906

Appeal from Superior Court, Cowlitz County; A. L. Miller, Judge.

Action by George Wiest against the Coal Creek Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ralph E. Moody, for appellant.

Coovert & Stapleton, for respondent.

DUNBAR, J.

The complaint in this case alleges, in substance, the corporate capacity of the defendant; that defendant owns and operates a railroad leading from Coal Creek slough to the logging camp of the Rue & Clyde Logging Company in Cowlitz county, a distance of about 2 1/2 miles, by hauling logs thereon, with engines and logging cars belonging to said defendant, from said logging camp to said Coal Creek slough; that on November 9, 1903, while plaintiff was in the employ of, and working for, said Rue & Clyde Logging Company, in its said logging camp, said company, by agreement with defendant, loaned plaintiff to defendant at defendant's request, for the purpose of acting and working on said defendant's logging train as a brakeman in making a trip on a train of logs from said camp to said Coal Creek slough, and that plaintiff so worked as a brakeman on said trip at the request of defendant, and by defendant's license and permission, and under its direction; that in making said trip the train consisted of five logging cars, heavily loaded with green logs and in charge of Tom Allen, conductor and foreman of the defendant's crew; that plaintiff had no previous knowledge and experience as a brakeman upon a railroad train; that this was well known to defendant that, notwithstanding this, the defendant recklessly carelessly, and negligently gave plaintiff no instructions as such brakeman, or any warning of the danger and risk of such employment, though defendant well knew that its said railroad track, by reason of its heavy grades and defective equipment was a peculiarly dangerous one, and that this was unknown to plaintiff; that defendant had constructed said railroad in such a careless, negligent, and unworkmanlike manner, in that its grade was too steep for safety and its rails too light for logging railroad traffic or a heavy strain, and on said trip used a defective, old, and worn-out engine which was originally built for light quick traffic, and which was not equipped with good and sufficient brakes, and was not fitted for hauling so heavy a load, not properly geared and without whistle or bell, and without any means of signaling to brakeman or crew, and had so carelessly and negligently equipped said car with such poor, defective brakes, and in such a manner, that only one brake to a car could be set when said car was loaded, and had negligently overloaded the said train, of which plaintiff had no knowledge; that said train, by reason thereof, got beyond control of its crew, and proceeded down the steep grade aforesaid at a terrific and unmanageable rate of speed causing the entire train to leave the track and pile up in a disastrous wreck. The complaint proceeded to state that the plaintiff, realizing the uselessness of longer remaining upon the train, at the instance of the conductor Allen, jumped from the train, struck the bank, rolled down upon the track, had one of his feet cut off, and received other injuries, and asked damages in the sum of $20,500. A demurrer was interposed to the complaint, which was overruled. The answer was a denial of the negligent acts alleged in the complaint, and an allegation that the defendant entered into a contract with the Rue & Clyde Logging Company, whereby the defendant was to transport the logs over its railroad from the logging camp of the said Rue & Clyde Logging Company to Coal Creek slough for a compensation, under which contract the Rue & Clyde Logging Company was to load the logs upon the cars of the defendant and have full charge and control of the loading of said cars, and that the only obligation of the defendant was to convey; alleged that the Rue & Clyde Logging Company did load the cars and train on the said 9th day of November, 1903, upon which the plaintiff alleges he was, and that the plaintiff was an employé of the said Rue & Clyde Logging Company at said date and time; alleged assumption of risk on the part of the plaintiff, and contributory negligence. Upon the completion of the respondent's testimony, motion for nonsuit was made, which was overruled. Appellant introduced its testimony, rebutting the testimony which was introduced by the respondent. The jury was instructed, and returned a verdict in favor of respondent for $5,000.

The appellant in its brief presents 28 assignments of error. While it is barely possible that, on the trial of a reasonably short case, 28 reversible errors might occur, yet ordinarily, where so many errors...