Wile v. Northern P. Ry. Co.

• Decision Date: 08 February 1913
• Citation: 72 Wash. 82,129 P. 889
• Parties: WILE v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

129 P. 889

72 Wash. 82

WILE v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

February 8, 1913

Department 2. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Action by Stewart M. Wile against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

C. H. Winders, of Seattle, for appellant.

Neterer & Pemberton, of Bellingham, for respondent.

MORRIS J.

Damages are asked for in this case, based upon the claim of respondent that he was injured by being thrown against the corner of a seat while a passenger upon one of appellant's mixed trains. The allegation of negligence is that 'defendant so negligently and carelessly operated the engine detached from the said car by backing and bumping same against the car on which plaintiff was riding while said car was standing still, with great force, and such force as to move the car with such suddenness and force as to throw the plaintiff down.' The claim of error is that the evidence is insufficient to sustain this allegation, and that appellant's motion for judgment notwithstanding the verdict should have been granted.

The train upon which respondent took passage was composed of 30 freight cars and a passenger car. Respondent was lame and walked with a limp; one of his legs being shorter than the other. He generally carried a cane or stick to assist him in walking. When the train arrived at Wheeler, and after it had been standing some time, respondent arose from his seat and started to walk to the other end of the car to obtain a drink of water. He did not take his stick with him, but left it in his seat. He had taken only a few steps when, he says 'there came in from in front a bump which took me about three or four feet off my feet, and then I went to catch myself, and I fell over.' He says again, in response to a question as to the force of the jolt: 'Well, there was force enough to take me about four feet, and then the length of myself.' There is no other testimony in the record as to the jerk or jolt to which respondent attributes his fall. He says that the car in which he was riding frequently received the same kind of a jolt or jar, both before and after the one which caused his fall. There was no testimony showing other facts incident to the occurrence such as any unusual disturbance; nor did respondent attempt to show that the jolt or jar was greater than is ordinarily incident to the operation of freight trains with passenger accommodations attached. The law, as established by a long list of authorities in cases of this character, will not support a recovery until there is some evidence to justify a finding by the jury that the thing complained of was something more than the ordinary jerking or jolt necessarily incident to the operation of freight trains, or results from defects in equipment or roadbed, negligence of train operations, or other causes leading to a belief that it was an unusual happening, and one which could not be said to be the ordinary and usual disturbance caused by the handling of freight and the backing and filling incident to the work performed by trains of such a character.

'It is a matter of common knowledge that jolts and jerks are usual incidents in the operation of freight trains; and therefore negligence cannot be inferred from the mere fact that a passenger's injury resulted from a jar caused by the sudden stopping of such a train. In other words, a jar or jerk in a freight train is not, of itself, evidence of negligence.' 2 White or Personal Injuries on Railroads, § 670. In the preceding section the same author says: 'A railroad company undertaking to carry passengers, for hire upon freight trains owes them the same duty, as to care, which the law exacts of it as to passengers transported on passenger trains; the only difference being that the passengers on freight trains assume those dangers or perils which are necessarily incident to that mode of conveyance. * * * A passenger on a freight train is charged with knowledge of and assumes the increased hazards incident to that mode of travel, and he accepts passage with notice that the train is not equipped with all the safeguards provided for passenger trains, and the risk of injury due to this fact.' Elliott on Railroads states the same rule in volume 4, § 1629, and says: 'The duty of the company is, therefore, modified by the necessary difference between freight and passenger trains and the manner in which they must be operated; * * * nor is the company necessarily negligent because in starting, or in taking up or letting out slack there is more or less of a jerk or sudden motion of the cars.' Thompson, in volume 3, § 2903, of his Commentaries on the Law of Negligence, announces the same rule. A late case reviewing many of the...