Malmstrom v. Northern Pacific Railway Co.

20 Wash. 195 | Wash. | 1898

The opinion of the court was delivered by

Scott, C. J.

brought this action to recover damages for personal injuries claimed to have been caused by the negligence of the defendants in backing a train upon him. The accident happened about seven o’clock on the evening of Kovember 15, 1896, while the plaintiff was attempting to cross diagonally the Northern Pacific railroad track on Railroad avenue, in Seattle, between where Commercial and Jackson streets cross the avenue. The track rested upon piles, and, while attempting to-cross it, the plaintiff’s foot was caught between the ties which were not planked over; and before he could get it free the train was backed upon him, causing the injury.

The answer denied any negligence on the part of the defendants, pleaded contributory negligence on the part of the plaintiff, and also pleaded a release executed by the plaintiff prior to the commencement of the action, whereby he relinquished all claims for damages. The plaintiff, in his reply, admitted the sighing of the release, but alleged that his signature was obtained' by fraud, and that before commencing the action he had tendered to the defendants the sum paid as a consideration for the release, which the defendants refused to accept. The trial resulted in a verdict for the plaintiff for the gross sum of $3,185.50, upon which the jury credited $1,185.50, paid by the defendants, prior to the commencement of the action, for the release aforesaid, and rendered a net verdict for the sum of $2,000. The defendants have appealed, insisting that there is no evidence of negligence on their part, and, if there was, that the plaintiff was guilty of contributory negligence, and that his action was barred by the release in question.

There was evidence to show that people habitually crossed the track where the plaintiff attempted to, and he had walked over the same place a great many times before. His testimony shows that he considered it somewhat unsafe, and at the particular time he called to a companion, who was preceding him, when they arrived at the trestle, to be careful and not slip. There is also testimony to show that another safer, but longer, route might have been taken; and we think the evidence would have defeated a recovery, if the injuries had been directly caused by the unsafe condition of the way, and had not arisen from substantially an independent source. The plaintiff could well be held to have assumed all the risks ordinarily incident to making the crossing, but there was proof to show that at the time he and his companion undertook to cross the track, there were no trains moving in the vicinity, but at the time his foot became fast, a train some distance away began backing up toward him; that he called, and his companion called, to the train men to stop; that there was no lookout on the rear car, and the train continued backing and, he being unable to get loose, it ran upon him. We think here was direct proof of an independent fact, showing negligence on the part of the defendants, whereby the injury was caused, and the plaintiff ought not to be held to have assumed any such risk in attempting to make the crossing, although he knew ■that it was unsafe and that one was in danger of slipping or falling in attempting to cross it, especially in the dark.

This disposes of the first two questions urged by the appellants. As to the release, it is first contended that a motion for a non-suit made by the defendants at the close of the plaintiff’s case should have been granted, for the reason that the reply admitted the execution of the release, hut sought to avoid it on the ground of its having been fraudulently obtained, and that the burden of proof was upon the plaintiff to show that it had been so obtained, and as to which he had offered no proof on his primary case. It appears, however, that before the plaintiff rested, this matter was submitted to the court by an inquiry on the part of the plaintiff as to the order in which the proof should be introduced; and the court ruled that the admission in the reply would entitle the defendants to have the release read in evidence without proof of its execution, and that afterwards the plaintiff might show the circumstances under which it was obtained, and the defendants have an opportunity to rehut it. ISTo exception was taken to this ruling by the defendants. On the contrary, the record fairly shows that they acquiesced therein, and consequently the point is not now available. Afterwards proof was introduced upon the part of the plaintiff to show that at the time the release was executed he was not in a condition to understand what he was doing. It is unnecessary to set this forth in detail, hut there was sufficient offered, if believed by the jury, to avoid the release.

It is further contended that the plaintiff’s action should fail because, as a matter of fact, he did not make a tender of the moneys so received prior to commencing his suit, as alleged in his aniswer, but at all times retained the money in his possession. The plaintiff contends that he was not bound to make such a tender, but was entitled to have the same credited upon the amount that the jury should find he was entitled to recover. The defendants contend that this should not be the rule, for the reason that, if the recovery should be for less than the sum originally paid for the release, the defendants would not "be in a position to obtain the excess. But we do not think that we are called upon to consider that question in this ease, for there was no prejudicial error, as the recovery exceeded the amount paid for the release, and the defendants were in no wise injured.

Affirmed.

Dunbar, Reavis and Anders, JJ., concur.

Gordon, J., not sitting.