69 Wash. 12 | Wash. | 1912
This action was commenced to recover damages for personal injuries, suffered by the plaintiff in consequence of the alleged negligence of the defendants. There was a verdict in his favor, which the court reduced in entering the judgment. Each of the parties has appealed.
The negligence charged is that the defendants own a right of way, roadbed, and railway, within the city of Spokane; that the roadbed where the accident happened is in a deep cut which is spanned by an overhead bridge; that the franchise granted by the city permitting the construction of the railway required the erection of an overhead crossing at the place of the accident; that the crossing was negligently constructed in that it was made of wood with a wooden floor, with spaces between the floor planks; that, by reason of the negligent construction, smoke and steam from a passing train, operated by the defendants j ointly, passed through the Open spaces of the bridge upon which the plaintiff was driving a team attached to a heavy wagon; that the train was running at a speed of fifty miles an hour; that no bell was rung, no whistle sounded, and no other warning given; that, by reason of the cut and the contour of the ground at the approach to the bridge, the plaintiff could not see or hear the train until he was upon the bridge; that the smoke and steam from the engine passed through the cracks immediately under the horses, and frightened them so that they ran away and threw the plaintiff from the wagon; that the wagon passed over the plaintiff, and that he sustained severe and permanent injuries.
The defendants answered separately, denying the charges of negligence. The defendant Great Northern Railway Company admits that it owns the right of way and roadbed where the plaintiff was injured. Each of the defendants pleaded affirmatively that the plaintiff’s injuries resulted in consequence of his own negligence.
The city of Spokane, prior to the accident, granted a franchise to the Great Northern Railway Company, which
In addition to the general verdict, the jury, in response to special interrogatories, answered that no bell was rung and no whistle sounded, that the team was not frightened by the noise of the train, and that the plaintiff could have seen the approaching train when he was approximately fifty feet from a point on the bridge directly over the railway track. Each of the defendants interposed timely motions for a nonsuit and a directed verdict. After the return of the verdict, the defendant the Great Northern Railway Company filed its motion for a new trial, and the defendant the Spokane, Portland & Seattle Railway Company filed an alternative motion for a judgment non obstante, and in event the motion was denied, for a new trial. The denial of these motions constitutes the first and principal error assigned. It is not disputed that the defendant the Spokane, Portland & Seattle Railway Company operated the train that passed under the bridge at the time the boy received his injury.
The defendant the Great Northern Railway Company contends that there is no evidence that it constructed the bridge. It suffices to say that it admits its ownership of the track and roadbed, and that it accepted the franchise which required it to construct and forever maintain a suitable highway bridge over its track. This made a prima facie case, and it offered no evidence tending to show that it did not construct the bridge. Moreover, if it had done so, the franchise puts the duty upon it of forever maintaining a suitable bridge.
It contends, further, that the cracks in the bridge were the natural result of the shrinkage of the planks in the floor, that the bridge was constructed in the usual way, and that the presence of the cracks under these circumstances does not raise a presumption of negligence. In support of .this
This defendant further contends that the verdict rests upon speculation, and that the horses may have been fright
A further consideration of the case as to the alleged negligence of the defendant the Spokane, Portland & Seattle Railway Company requires a brief reference to the testimony. The record discloses that the team was gentle and that the boy was a competent driver; that, owing to the elevation of the ground immediately westerly of the railroad track, the boy could not see the track as he drove upon the bridge, nor until he was approximately fifty feet from a point' on the bridge directly over the track, as the jury found; that the bridge, except for about fifty feet immediately above the track, was on a grade; that the boy was driving down an eight per cent grade; that he did not see or hear the train until it was practically at the bridge; that no bell was rung and no whistle sounded; that the train was a passenger train, traveling down grade at forty-five miles per hour; that the top of the smokestack was within five or ten feet of the floor of the bridge; that there were cracks in the bridge from one-half to one and one-half inches in width; that steam and smoke were escaping from the smokestack of the engine; that, as the boy expressed it, there was “smoke on either side of me and between my horses,” and that the accident hap
A railroad company is not liable for damages resulting from the operation of its train in the usual and ordinary way, but it is liable for injuries flowing from the unusual and negligent operation thereof. SB Cyc. 937 to 939, and 949 to 951.
“The degree of care required is only what under the circumstances of the particular case is ordinary care; or in other words, such care as an ordinarily prudent person would exercise under like circumstances.” 33 Cyc. 950, 951.
The correct rule is tersely stated by Judge Rudkin in Collier v. Great Northern R. Co., 40 Wash. 639, 82 Pac. 935, as follows:
“In cases such as this the liability of a railway company depends upon its control over the agency causing the injury, or the duty it owes to the injured party.”
The court, in substance, instructed the jury that, if either of the defendants negligently constructed the bridge and negligently left spaces between the boards in the floor, and by reason thereof smoke or steam came through the floor, frightened the team, and caused the boy to be injured, it was responsible for the consequences thereof. It further instructed:
“You are instructed that, if the defendants or either of them were operating a train upon and over the railroad and roadbed of the defendants or either of them, at Fifth avenue and F streets at or about the hour of seven o’clock a. m., on August 23rd, 1910, that said train was being operated at an excessive and negligent rate of- speed, and they or either of them failed to give any warning or signal of the approach of said train, and no bell was rung or whistle sounded, and no warning whatever given of the approach of said train, and the minor plaintiff could not hear the said train and could not see the same by reason of the contour
The giving of these instructions is assigned as error by each of the defendants. The first instruction was clearly right as to the Great Northern Railway Company. Its duty under its franchise to maintain a suitable bridge was a public duty and a continuing one. Elliott, Railroads (2d ed.), § 467. While the instruction may not be happily worded, it in effect stated to the jury that a failure to build and maintain the bridge in the usual and ordinary way was negligence. The quoted instruction was a correct application of the law. The defendants do not contend that it was usual and customary to operate its train at that point—a street crossing and a thickly inhabited part of the city, as shown by the photographs in evidence—at a speed of forty-five miles an hour, without ringing a bell or giving any warning of its approach; but on the contrary, as we have seen, its testimony is that the bell was ringing, and that the speed did not exceed twenty-five miles an hour. The authorities which they cite go no further than to hold that a railway
We think there is abundant evidence tending to show that the injury resulted from the combined negligence of the defendants.
“If the concurrent negligence of two or more persons combined together results in an injury to a third person he may recover from- either or all.” 29 Cyc. 487.
It is next argued that the plaintiff was chargeable as a matter of law with contributory negligence. It suffices to repeat that he could not see the train until he was on the bridge and within fifty feet of a point directly over the railroad track. He could then see the track for a half a mile. When he did see the train it was upon him. He testified that, before driving upon the bridge, he listened for the train and did not hear it. Whether he was guilty of negligence was a question for the jury. Chicago, St. L. & P. R. Co. v. Butler, 10 Ind. App. 244, 38 N. E. 1; Ladouceur v. Northern Pac. R. Co., 6 Wash. 280, 33 Pac. 556, 1080; Grant v. Oregon R. & Nav. Co., 54 Wash. 678, 103 Pac. 1126, 25 L. R. A. (N. S.) 925; Averbuch v. Great Northern R. Co., 55 Wash. 633, 104 Pac. 1103.
The defendants have interposed separate motions to dismiss the plaintiff’s appeal on the ground that the order granting a new trial is not an appealable order. The jury returned a verdict for $5,213.50. The motions for a new trial were denied on condition that the plaintiff should, within fifteen days, consent to a reduction of the verdict and judgment to $3,500. He declined to consent to the reduction, and a new trial was granted upon that ground only. The motions are denied. Gray v. Washington Water Power Co., 27 Wash. 713, 68 Pac. 360; Armstrong v. Musser Lumber & Mfg. Co., 43 Wash. 584, 86 Pac. 944; Gardner v. Lovegren, 27 Wash. 356, 67 Pac. 615.
The judgment will be modified so as to permit the plaintiff to accept a judgment for $3,500 within fifteen days after the filing of the remittitur in the lower court. Otherwise the order granting a new trial will be affirmed. Neither party will recover costs upon appeal.
Dunbar, C. J., Fullerton, Parker, and Mount, JJ., concur.