31 Wash. 585 | Wash. | 1903
The opinion of the court was delivered by
— Action for personal injuries. Plaintiff obtained judgment in the court below for $10,000. Defendant appeals.
The appellant is a railroad company operating a line of railway between Walla Walla and Pleasant View in Walla Walla county, Washington. On September 15, 1901, the
The principal questions in the case are whether it was negligence for the appellant to maintain the cattle guard so near the track, and, if so, did the respondent know or should he have seen the danger, and had he therefore assumed the obvious risk ? We think both of these questions, under the circumstances of this case, were properly questions for the jury. If the erection and maintenance of the cattle guard so near the side of the track was such that an ordinarily prudent person should have foreseen that an accident was liable to happen to persons who had a right to be upon the side of a passenger train at this point, then it was negligence of the company to place it and maintain it there. The conditions surrounding each particular case have much to do in determining what a prudent person would do. When it was shown that this cattle guard was within about eighty-five feet of a station or place where trains were accustomed to stop, where the train men were
Counsel for appellant, however, rely upon the second point, and insist that the respondent, under the circumstances of this case, must be held to have assumed the risk. Numerous authorities are cited from this court and other courts to the effect that where an employee knows, or in the reasonable exercise of his faculties should know, the dangers which surround him, he must be held to have assumed the risk. The following cases are cited from this court: Week v. Fremont Mill Co., 3 Wash. 629 (29 Pac. 215); Jennings v. Tacoma Ry. & Motor Co., 7 Wash. 275 (34 Pac. 937); Bullivant v. Spokane, 14 Wash. 577 (45 Pac. 42); Hoffman v. American Foundry Co., 18 Wash. 287 (51 Pac. 385); Anderson v. Inland Telephone, etc., Co., 19 Wash. 575 (53 Pac. 657, 41 L. R. A. 410); Brown v. Tabor Mill Co., 22 Wash. 317 (60 Pac. 1126); French v. First Avenue Ry. Co., 24 Wash. 83 (63 Pac. 1108); Robare v. Seattle Traction Co., 24 Wash. 577 (64 Pac. 784); Danuser v. M. Seller & Co., 24 Wash. 565 (64 Pac. 783). It is unnecessary to review these cases separately. They all, in effect, announce the rule stated above. It is enough to say that in each of the cases cited it was held either that thé plaintiff knew of the danger, or that he should have known it in the exercise of ordinary observation. In this case’it is not contended that the respondent knew of the cattle guard post by which he was injured. The evidence shows conclusively that he did not know of its dangerous position in relation to the track. The ques
“But how different this case is from any of the cases above noticed! There is no question involved here of working with dangerous machinery or of working in the immediate vicinity of dangerous machinery. The plaintiff was not injured by anything he was working with or upon. The cause of his injury was entirely disconnected with, and separate and distinct from, the subject of his work. It is true that if a man is working in a mill or factory, where common intelligence will take notice that dangerous machinery is used, and steps back upon a saw or into a furnace, or upon any dangerous device or machine, he cannot recover* damages, because, being charged with knowledge of the existence of these dangerous objects, the danger must be held to be apparent; and while it is true that the plaintiff in this case could doubtless have seen the barrel, if he had looked at it, — and that is the admission which the counsel for respondent sought to obtain, and did obtain —he was under no obligation to look for it, and naturally would not look for it, for he had no actual notice of. its existence, and it does not appear that it was a necessary or common attachment to mills, or, if it was, that it was the custom to leave it uncovered. It was not a danger incident to the business of putting up a pipe, and under the testimony it was not so conspicuous as to challenge attention; and the plaintiff, being rightfully there in the discharge of his .duty, had a right to rely upon the duty of the master to furnish him a safe place in which to work, and*592 the place evidently not being safe ánd the danger not apparent, the master, under the authorities, is liable to damages.”
The circumstances of that case, it is true, are not the same as those in the one before us, but the case serves to show that the difficulty in all cases of this character is not with the rule of law, because the rule of law is well settled and understood, but arises when we come to apply the rule to cases where the danger is not known, and where it must be determined from the facts .that the danger should have been known by the employee. The question, then, resolves itself into this: Do the facts in this case show that respondent should have known the danger? The facts are not disputed, and they are, substantially, that respondent was boarding the train in the usual and ordinary way; that the train was running slowly; that he was about twenty-five feet away from the cattle guard posts; that if his attention had been directed towards these posts he could have seen them; that this was the first time he had stopped off at this place; that he could not board the train except at the crossing; that he had been in the railroad business for about twenty years, was acquainted with the location of cattle guards, and had never known them to be placed so near the track as this one, or to be dangerous; that it was necessary, when boarding a moving train, to look toward the rear of the train, not in the direction the train was moving, and that it was also his duty to look after passengers desiring to board the train; and, while the plaintiff testified that if his attention had been called to the cattle guard he could have seen it, yet it nowhere appears that he could have known, even if he had seen the cattle guard, that it was dangerously close to the cars. We know from common experience that it is difficult to tell how near a car will come to objects along the side of a
Two other questions are presented in the case, one of which is the refusal of the court to strike out an answer to a question because it was not responsive. While the court in terms did not strike the answer, it subsequently told the jury that they could not consider evidence of that
We do, however, think the verdict was excessive in proportion to the injury. Ho bones were broken, and at the time of the trial there were no marks or disfigurements upon the person of respondent, and evidence of any permanent impairment of the respondent was very slight. At the time he was injured he went upon his train with assistance, did some work on the way in, rode from his train home in a buggy, and was in bed for about six days thereafter. The doctor who examined him by the aid of an jX ray at the time of the trial could find no evidence of physical injury, and the whole injury at the time of the trial appeared to be to his nervous system, which might or might not remain permanently. It is true that for several months after the injury he was incapacitated for work more or less, and it is no doubt true that he suffered much pain. Counsel for respondent makes a strong argument against this court’s reducing the amount, and several eases are cited where we have in effect said it is only in cases where the verdict is clearly in excess of any just measure to such an extent that it shows passion and prejudice on the part of the jury that a verdict will be set aside. It is true, also, that the jury and the court below have advantages in judging of damages which we do not have. But it seems to us that a verdict for $10,000, in a
“I feel somewhat inclined to sustain the defendant’s motion to set aside the verdict as excessive, and grant a new trial, unless the plaintiff remit the damages awarded in excess of $6,000. Should I require the plaintiff to file a remitter in this excess as a condition for overruling the motion and he should decline to do so, he could not appeal from my action without going through a new trial. If he could have my action reviewed by the supreme court without doing this I should feel more inclined to take this course. Should I err in requiring this or in granting a new trial it would entail much more trouble and expense on the parties than if I should err in overruling the motion for a new trial, and besides if the supreme court should conclude that I had erred in this and in no other respect it may itself require the plaintiff to remit a part of his verdict and judgment, or if he declines, reverse and order a new trial. Partially for these reasons and while I have some misgiving oil this point as to the damage being excessive, I deem it the better course- — the course that will best conserve the rights of both parties — that will present the question for consideration of the supreme court without jeopardizing the rights of either party, to deny the motion.”
The trial judge, who heard the evidence, saw the witnesses and was in a position equal with the jury to judge of the damages, was not satisfied that the amount of the verdict was not excessive. He was inclined to reduce the amount to $6,000. He did not do so, because, as he says, he had some misgivings as to the amount being excessive, and because this court would do so if we concluded he had erred in denying the motion on that ground. These statements of the trial court, taken in connection with our own
Fullerton, C. J., and Anders and Dunbar, JJ., concur.