127 Wash. 607 | Wash. | 1923
Lead Opinion
Respondent, as administratrix, sued appellant and the engineer of its interstate commerce train, one Snyder, for damages on behalf of herself and minor children for the killing of her husband. On the trial before a court and jury, Snyder was exonerated, and a verdict for $5,000 against appellant returned.
The complaint alleged negligence in that the appellant operated its train, which at the time of the accident consisted of an engine and caboose, carelessly and negligently, and without warning backed into a speeder operated by the deceased; that the train was being run backward from Washtuena to Pasco; that the engine was not properly equipped with lights to give to deceased sufficient warning of its approach; that the train was carelessly and negligently operated by the engineer, Snyder, and the conductor, at an-excessive speed for a train not properly equipped with headlights to show light along the track over which the train was being operated at the time; that the death of respondent’s decedent resulted directly and proximately from the wrongful negligence and carelessness of appellant and its employees, Snyder and Erickson, who were in charge of the engine and caboose, and be
When the case went to the jury it stood substantially upon the following facts:
At the time of his death, and for ten or twelve years prior thereto, the decedent was employed as a section foreman for the Spokane, Portland and Seattle Railway Company, over which appellant operated trains. On January 2, 1923, he came to Pasco under instructions from his superior, the roadmaster, to get his pay check and to get supplies. This had been the custom for years, with the full knowledge of the employer. On that particular day, he secured his pay check, two boxes of groceries, and a sack of meat, and accompanied by two other Japanese, started out about 4:30 p. m. from the Northern Pacific freight depot at Pasco for Levy, a station about fifteen miles from Pasco on the Spokane, Portland and Seattle Railway, where he resided and had charge of the section. He and his companions stopped at the shanty of one Johnson and secured a lantern, being the regulation yellow lantern used by section men while traveling on the track, at about 5 o’clock p. m., when it was becoming dark, and put the lighted lantern on the forward part of the gasoline speeder on which they were making the trip. Their motor had trouble while returning, causing delay, and when the speeder upon which they were riding reached a point about 650 feet east of a pump house out on the Snake River, they saw a light in the distance which they thought was a train, and which afterwards proved to be a train. As one of the surviving Japanese testified, when they saw the light they were not sure an engine was coming, but they thought one was coming. The survivors testified that, when they saw the light down the track in the direction
Although appellant strenuously contends that the evidence offered by respondent shows that there were lights on the engine, and that the positive testimony of Snyder that there was a bull’s eye light on the tender of the engine, and that it was turned on and burning from the time the train left Martindale, running backwards towards Pasco, was not competently controverted, the evidence of a disinterested witness who lived at and operated the pumping station, who heard the speeder go by and heard the crash when the engine struck it, was that he saw no light before the collision, and that, when he ran to the scene of the accident, there was no light on the engine; that if there had been, as he was looking for it, he certainly should have seen it.
Appellant contends that because, on cross-examination, this witness, evidently being somewhat reluctant to be too positive, admitted that “there might have
Most of the eighteen alleged errors complained of by appellant have to do with the sufficiency of the evidence to make a case against appellant. Many cases from this and other courts are cited to support this contention.
On the facts here presented, there is no doubt that there was a case to go to the jury, when the testimony
The next chief contention of appellant is that, nnder the evidence, the deceased was clearly guilty of contributory negligence, thus defeating recovery.
Upon this point it is argued that Konno was first to see the light on the engine, according to the testimony of respondent’s witnesses, who were with him on the speeder, and that at least forty seconds elapsed from the time he first saw the light and the instant of the collision; that he had been running his car slowly on account of motor trouble, and brought his car to an immediate stop; that, after seeing the light, he ordered the men to remove the supplies from the ear; that they did so, and placed them about six feet from the track, removing the lantern also, and started to remove the car; that Konno was on the front end and the other two men on the other end of the speeder; that the speeder was swung around and was about half off the tracks when the collision occurred, Konno having been on the end that was still on the track, and was struck and killed while standing in the middle of the track. It is also contended that Konno was under no duty to remove the ear.
As to these contentions, forty seconds is not a very great length of time for three men to have removed two boxes and a sack from the speeder and attempt to remove the car itself. There is evidence also that the speeder ran about thirty feet before stopping. Konno being a section foreman, no doubt considered it his duty to save the car, if he had time enough, and prob
Appellant further contends that Konno, being a section foreman in the employ of the company, violated a rule of the company which required him to obtain a “line up” of trains, operating over the track upon which he was going to travel before going out upon the track with a gas car.
It was shown that there was such a rule of the company, but under the circumstances hereinbefore detailed, the jury had a right to conclude, as a matter of fact, that the violation of such rule by Konno was not the proximate cause of the accident. In other words, had there been sufficient lights upon the tender of the engine, traveling backwards through the dark at thirty miles per hour, other employees rightfully using the track could readily have seen them. Konno had a light on the front of his car which could have been seen. The failure to find out from the operating department of the company what trains were moving in that vicinity at that time, the jury had a right to consider made no difference. The deceased had a right to assume that trains would not be operated without sufficient lights, and to look out for and otherwise give sufficient warning to give him an opportunity to protect himself and avoid being run down. Anest v. Co
The above case answers several other contentions made by appellant, reference to which cannot be made without unnecessarily prolonging this opinion.
Complaints are also made of the giving and refusal to give certain instructions by the trial court, in which, upon being examined, we find no error under the facts and circumstances shown in this case, and we think the court properly submitted the case to the jury upon the issues of fact presented. See Anest v. Columbia & Puget Sound R. Co., supra.
It is also contended that because Snyder was exonerated by the jury, and that, if there was any negligence shown at all, it was the negligence of Snyder, that that ipso facto exonerated appellant.
We do not consider that contention tenable for the reason that the negligence complained of was not only the negligence of the engineer Snyder, but also of the conductor, and the appellant itself in ordering the engine and caboose to be run backwards in the nighttime, fifty-eight miles on its roadway without showing proper lights, or else traveling more cautiously and giving proper warnings to persons rightfully on the tracks.
Another alleged error is the admission of testimony asserted to be incompetent, of certain witnesses respecting the life expectancy of the deceased. This we have examined and find unmeritorious.
An examination of the record discloses no error warranting a reversal.
The verdict and judgment are affirmed.
Dissenting Opinion
(dissenting) — I dissent for the reason that the evidence establishes the contributory negligence of the deceased.