84 Wash. 220 | Wash. | 1915
The appellant, as administratrix of the estate of John Bjornsen, brought this action against the respondent, Northern Pacific Railway Company, to recover damages claimed to have been suffered by the death of Bj ornsen, which death she alleged was caused by the negligence of the railway company. On the trial of the action, at the conclusion of the evidence, a challenge to its sufficiency was interposed by the railway company, which the court sustained. Judgment was thereupon entered to thé effect that the appellant take nothing by her action. This appeal is prosecuted from the judgment so entered.
The evidence tended to show that the deceased was, at the time he met his death, and had been for some two years prior thereto, an employee of the railway company, engaged in the work of unloading coal cars at the coal bunkers of the railway company, situated at Tacoma, in this state. The coal bunkers were so constructed that the cars could be shunted over them on a railway track and' the cars unloaded thereon through trapdoors, fitted either on the bottoms or the sides of the cars. On the day of the accident, a loaded coal car was shunted over the bunkers, having doors opening at the bottom of the car, some twelve in number, six being on each side. It was a car the body of which was made of wood, and when the catches or fastenings of the trapdoors were loosened, the doors would not open, owing to the fact that the damp coal had caused them to swell and bind upon their surroundings. This was not an unusual condition with this form of car, and iron bars were kept within reach to open the doors, which was done by forcing the bars down through the coal and hammering upon the door. When these doors failed to open after their fastenings were loosened, a coemployee of Bjornsen went after the bars with which to force them. Returning with two of them, the men climbed upon the car and proceeded with the work on opposite sides of the car. The co-employee, after opening four of the doors on his side of the car, noticed that Bjornsen was having no success; his bar,
No one saw the position of the deceased at the time the trapdoor was opened. His coemployee testified that the deceased was standing on the coal when the bar was handed him, and inferentially it can be gathered that the deceased was so standing when the bar was pushed down through the coal, but the coemployee testified that he did not notice his position at the time the door was opened. It does appear, however, that cars of the same character and whose doors locked in the same manner had been previously unloaded by the deceased; that four of the trapdoors on this very car had been opened by the coemployee in the immediate presence of the deceased; and it appears, moreover, that the deceased was warned by the foreman, prior to his starting work on the car, not to stand on the coal when he drove open the doors, and that this warning was repeated to him by the co-employee, when the coemployee climbed down from the top of the car as before related.
At the conclusion of the evidence, the foregoing facts appearing, the trial court sustained a challenge to the sufficiency of the evidence to warrant a recovery, and directed a judgment to the effect that the appellant take nothing by her action.
“Plaintiff further says that the deceased was required or permitted to work in unloading cars and running the same out of the bunkers down the track for a longer period than sixteen (16) hours; to wit, for a period of about thirty (30) hours prior to the accident, and that he was not in a fit condition to do the work for which he was employed.”
The complaint was served on April £1, 1913, the answer on May 8, 1913; and the reply on September 17, 1913, after the cause had been set for trial, and when the parties had appeared in court for the purpose of trial. On the service of the reply, the respondent’s counsel stated that he had no objections to the filing of a reply denying the affirmative allegations in his answer, notwithstanding the reply was outside of the rule time, but did obj ect to a reply containing the new matter, as it introduced a new element of negligence which he had not come prepared to meet. He thereupon moved to strike from the reply the affirmative matter, which motion the court granted. On the trial which followed, the court also refused to permit the appellant to introduce evidence tending to prove the matter alleged.
But it is said that it was negligence to use cars for hauling coal whose doors are liable to become swollen and fail to open when the ordinary fastenings are removed, and that some other and different method of opening them ought to have been devised. But it was shown that the cars used were cars commonly used by railway companies for like purposes, and that the trapdoors of such cars quite commonly became swollen so as not to open by the removal of the fasteners, particularly in wet weather or when loaded with damp coal; and it was not shown that there was any other method of forcing open the doors which would be attended with less danger than the method used. It was not, therefore, negligence in itself to use the cars. An employer can, without becoming an insurer against accidents to his employees, make use of the common appliances in the prosecution of his business. The question in such cases is not, would something else have been better, but is rather, are the appliances and methods used inherently dangerous and are the dangers concealed from the employees. But, as we say, this work had no pe
Did the court err in striking the new matter contained in the reply? We think not. Unquestionably it sought to introduce a new element of negligence in the cause, and an element which the respondent was entitled to time within which to make preparation to meet. When the appellant sought to introduce it after the case had been called for trial, it was within the court’s discretion either to refuse to permit it to be introduced, or grant a continuance that the respondent might have time to make preparation to meet it. Since the appellant did not ask for or desire a continuance, we can find no abuse of discretion in striking out the new matter.
Again, we think it may be questioned whether the matter as pleaded was sufficient in itself to permit a recovery even if proven. If we concede that sufficient is pleaded in the complaint and admitted by the answer to show that the deceased was, at the time of his death, employed by the carrier in interstate commerce, we think something more must be proven than the mere violation of the hours of service act to create a liability for an accident. It must be proven that the violation of the act was the proximate cause of the accident. This proof cannot be supplied by implication. It must be alleged and proven that the accident was directly attributable to the act of working overtime.
This is the view taken of the act by the supreme court of the United States in St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265. There the court said:
“The Hours of Service Act was approved March 4, 1907, and is entitled ‘An Act to promote the safety of employes and travelers upon railroads by limiting the hours of service of employes thereon.’ Chapter 2939, 34 Stat. 1415. We are unable to discover in the text of the statute any support for the conclusion that it was the purpose of Congress in adopting it to subject carriers to the extreme liability of insurers which the view taken of the act by the court below imposes. We say this because although the act carefully provides*227 punishment for a violation of its provisions, nowhere does it intimate that there was a purpose to subject the carrier who allowed its employes to work beyond the statutory time to liability for all accidents happening during such period without reference to whether the accident was attributable to the act of working over time. And we think that where no such liability is expressed in the statute it cannot be supplied by implication. It requires no reasoning to demonstrate that the general rule is that where negligence is charged, to justify a recovery it must be shown that the alleged negligence was the proximate cause of the damage. The character of evidence necessary to prove such causation we need not point out, as it must depend upon the circumstances of each case. Conceding that a case could be presented where the mere proof of permitting work beyond the statutory time and the facts and circumstances connected with an accident might be of such a character as to justify not only the conclusion of negligence, but also the inference of proximate cause, such concession can be of no avail here, since the instruction of the trial court and the ruling affirming that instruction were based upon the theory that the mere act of negligence in permitting an employe to work beyond the statutory period created liability irrespective of the connection between the alleged negligence and the injury complained of.”
See, also, Schweig v. Chicago, M. & St. P. R. Co., 216 Fed. 750.
Our conclusion is that the judgment must stand affirmed. It is so ordered.
Crow, Main, Mount, and Ellis, JJ., concur.