65 Wash. 453 | Wash. | 1911
— In an action for wrongful ejectment of Mrs. Leek from one of appellant’s trains, respondents obtained a judgment for $500, and the company appeals.
The circumstances are these: On October 16, 1909, while Mrs. Leek with her four children, aged 20, 16, 13, and 9, was a passenger on one of appellant’s trains, en route to Tacoma, and while passing through Montana, about a mile east of Big Timber, a fourteen-year-old boy, with a twenty-two rifle, shot at the train as it passed him, and instantly killed respondents’ boy, then thirteen years of age. The train pulled into Big Timber, where the conductor removed the body from the train and turned it over to the coroner. He then told Mrs. Leek she would have to leave the train, and upon her inquiry as to where she should go, he directed her to go to a hotel. She explained to the conductor that she had no money to pay necessary expenses, to which he replied: “That makes no difference. The superintendent of the road telegraphs me and told you to go there, and you go there.” Mrs. Leek then left the train with her family, and went to the hotel, where she remained from Saturday afternoon until Tuesday night.
In the meantime an inquest had been held, the body prepared for burial, and her husband, who had been telegraphed for, arrived. Tuesday night the family, with the body of the child, resumed their journey. The citizens of Big Timber, learning of the situation and wishing to express their sympathy for Mrs. Leek in her distress, on Saturday, presented her with $145, which she made use of in paying the expenses of the stop-over, and in purchasing some clothing. Mrs. Leek says she felt humiliated at being an obj ect of charity, and that it made her “feel as though she was on the town.” In addition to general damages, special damages, including a $38 hotel bill, $20 for clothing, and $4.50 for telegrams, are pleaded. Prior to bringing suit, a demand was made upon the company for these amounts, in addition to $5 paid a physician at Big Timber, and $25 paid for an option on some real estate, which was claimed as lost on account of the delay at Big Timber.
The same technical application by which we must determine the right of action in Mrs. Leek must be made use of in ascertaining her proof of damages, and we find none. The payment of the hotel bill and the purchase of clothing, the only items upon which proof is offered, were not the proximate result of her ej ection from the train, but of her awaiting the arrival of her husband, the inquest' over the body of her child, and preparing its body for burial. She had the right to remain on the train if she was so disposed, and she had the same right to take the next train and leave the remains of her child to the tender ministrations of strangers, and thus eliminate the hotel bill and expense for clothing. The ejection from the train was not, therefore, the proximate cause of these expenditures ; but it was rather her voluntary choice, pending the inquest and arrival of her husband.
If we are to look at it on a cold-blooded, dollar-and-cent basis, she suffered no pecuniary loss by her stay at Big Timber. She paid a hotel bill of $38 for herself and family. She expended $20 in the purchase of clothing for herself and family, which doubtless was used and became of some value
As was said in Olson v. Northern Pac. R. Co., 49 Wash. 626, 96 Pac. 150, 18 L. R. A. (N. S.) 209, in discussing an ejectment case:
“The verdict in this case is out of all reason. There was no financial loss, there was no injury to the person, .there was*457 a naked violation of a technical legal right which would entitle the respondent to little more than nominal damages.”
Further on in the same case it is said:
“We might follow our usual practice and reduce the judgment to such sum as the respondent is entitled to recover in our view of the facts, and require him to accept that amount or submit to a new trial, but the right of recovery is doubtful at best, and the verdict discloses such passion and prejudice on the part of the jury that it would be unjust to hold a litigant foreclosed by any of the findings. The judgment- is therefore reversed and the cause remanded for a new trial.”
The same order should be entered in this case, because of the excessive damages allowed in the verdict. Respondents are entitled to nominal damages; nothing more.
The judgment is therefore reversed, and a new trial ordered.
Dunbar, C. J., Crow, Ellis, and Chadwick, JJ., concur.