50 Wash. 232 | Wash. | 1908
W. M. Cavaness was killed while in the employ of the respondent as a locomotive fireman, and this action was brought on behalf of his widow and minor children to recover damages for his dentil. The plaintiffs were non-suited at the conclusion of their evidence, and appeal from the judgment entered. The respondent is engaged in the business of manufacturing lumber at the town of Lester, in this state. As a part of its equipment, it owns and operates a logging road which extends from its mill back into the hills to certain timber tracts, the particular bránch of the road in question haying a length of some two miles. Cavaness
The allegations of negligence relied upon for a recovery were, that the road over which the train was operated was built very light, with small, uneven, irregular rails, and in an uneven and irregular manner; that the cars had brakes on one end only, and that these could not be operated while the train was in motion, but must be set before the cars were started, and that the brakes were old, worn, broken, and much out of repair, and of little or no benefit for holding the cars when set as tight as they could be set; that the engine used was too light and inadequate for the work required of it, owing to the steep grade; and that the appliances generally were insufficient, defective, and inadequate for safe operation on the grade in question. There was no allegation that the train was overloaded at the time of the accident, nor was it alleged that any mismanagement or other negligence on the part of the train crew caused the accident, the allegation of negligence being confined entirely to the defective condition of the equipment.
The evidence tended to show that the grade of the track for some distance from the mill towards the timber was comparatively level, but increased rapidly as the timber was approached, the grade reaching in some places as high as 5 and 7 per cent. The road was laid with light rails not of a uniform size, and did not present an entirely even surface, being, as the witness expressed it, “A little bit waving.” Nor were the rails new when laid down, but were worn by use else
It was further shown that the train had made four trips on the day of the accident prior to the one on which it was allowed to run away. Three of these trips carried down two loaded cars, and on the other, two loaded cars and an empty on which the men working in the woods rode to the mill. Two cars were all that were carried when the train got from under the control of the engineer. Whether on that trip anything more than the ordinary load was carried is not shown, but it did appear that a rain storm came on while the cars were being loaded, and that the track was wet when the train started. The witnesses testify that the brakes were set in the usual manner before starting. The engineer felt the train getting from under his control immediately after it started. After vainly endeavoring to control .it he reversed the drivers, and turning to Cavaness said to him, “I guess it is a case of having to jump.” Cavaness replied that he would not jump until he had seen the engineer jump. The engineer thereupon jumped off, and Cavaness followed. The train ran down until it reached the more level track, when it stopped unharmed, still carrying its load of logs.
On the foregoing facts, the trial judge held that the appellants had shown no cause for recovery, and it seems to us that
As we find no error in the record, the judgment will stand affirmed.
Hadley, C. J., Crow, and Root, JJ., concur.