49 Wash. 8 | Wash. | 1908
This action was brought by the widow and minor children of Benjamin Gauthier, to recover damages on account of his death, which was occasioned while working as a fireman upon a logging train of appellant. From a judgment in the sum of $15,000 in favor of plaintiffs, defendant appeals.
At the time of the accident in question, defendant’s train had a crew consisting of the engineer, one brakeman, and Gauthier. The president of the road, one Wood, was with the crew at the time. The engine was one built purposely for logging and of the type known as “Climax.” The coupling between the tender of the engine and the first car was composed of a metal pipe about seven feet long and three inches in diameter, the ends of which had been plugged with an iron or steel eye into which a bolt was dropped. A wooden beam was sometimes used in place of the pipe for the coupling. This connecting appliance is commonly called a “rooster.” On the day in question the crew were attempting to back the train, consisting of three loads of logs and three sets of empty trucks, up a four and one-half per cent grade. The customary method of doing this work was as follows: The wheels of the truck farthest up the hill were blocked so as to prevent it from moving forward down the grade. The engineer would then move the engine • slightly forward until all the “slack” in the connections between the trucks had been taken up. He would then reverse his engine, apply the steam, and endeavor to start the train by bumping one truck-load and overcoming its inertia, then pro j ecting that truck against the next, and in this manner moving one after another until all should finally be in motion. On this occasion Wood and Gauthier were on the engine with the engineer when the train became “stalled,” and the engineer ordered Gauthier to block the wheels, or made a suggestion that they should be blocked. Gauthier and Wood immediately left the engine, one on either side, and started for the rear of the train. Wood reached there and blocked the wheels on his side. It is uncertain
The negligence charged against the defendant was that the rooster was defective, that the defect was one which could have been discovered by reasonable inspection, and that the load was too heavy to be backed up the steep grade in the manner and by the appliances employed at that time. The defendant interposed the defenses of contributory negligence and assumed risk. The principal contention of the appellant is, that Gauthier was guilty of contributory negligence; that he knew this was a dangerous place; that he was not in the line of duty in going there at the time of this accident; that he could have performed the duty of sanding, if necessary, without go
Appellant claims that the engineer had not at this time ordered, and did not need, the sand, and that it was really a hindrance instead of a help. Respondents offered evidence to show that equally competent trainmen might differ as to whether the sand was necessary in a given instance, and that the fireman being along by the side of the train could see the condition of the track and judge of the necessity for sand even better than the engineer, who, on account of his position, could not see the rail when they were backing the train. The evidence on the issues presented was extensive, and we do not believe it would serve any good purpose to analyze it in detail. There was a sufficient amount of competent evidence to sustain a finding of negligence on the part of the appellant. The defenses of contributory negligence and assumed risk, being of an affirmative character, could be sustained only by a preponderance of the evidence. There was a substantial amount of competent evidence tending to establish contributory negilgence and the defense of assumption of risk, and sufficient if the same had been accepted by the jury. But there was also a substantial amount of competent evidence tending to defeat each and both of these defenses. In a con
The appellant offered the testimony of one Payne to show that one of the officers of. the company, at a time previous to the accident, ordered one of the other employees out from between the loaded car and the tender, telling him the place was dangerous, such warning being given in the presence and hearing of Gauthier. This testimony was excluded by the court, and its exclusion is assigned as error. We think the ruling of the court was erroneous, but do not think it constituted reversible error, for the reason that subsequently another witness was permitted to testify fully to the transaction referred to and no evidence was introduced or effort made to in any way dispute the correctness of the testimony thus offered. It therefore became virtually an admitted fact in the case.
Upon the rebuttal respondents offered certain testimony which was objected to as not being proper in rebuttal. The objection was sustained. Thereupon respondents’ attorneys asked to have the case reopened for the purpose of introducing this .testimony, which had reference to the character of certain appliances. The court granted this request and respondent put in the evidence desired. This occurred at about 4:30 o’clock in the afternoon. Thereupon the attorneys for appellant requested a continuance until the next morning, stating to the court that their witnesses, by whom they had expected to meet this evidence, had been excused and had left the courtroom, and that it was necessary to find and consult
Several other assignments of error are presented touching matters of instructions and the introduction or exclusion of evidence. We have examined them all, but fail to' find any reversible error. The judgment of the honorable superior court is therefore affirmed.
Hadley, C. J., Mount, and Crow, JJ., concur.