129 Wash. 230 | Wash. | 1924
This case concerns a coffee pot and a freight train.
The testimony, as it must have been found by the jury, showed that the respondent, Mrs. McFarlane, was employed by the appellant railway company under a written contract to furnish meals for the appellant’s bridge gang crew working at various points along the branch line of the railway known as the Tacoma & Eastern Railway. The bridge gang had been working at the station at Mineral, and upon the completion of the work there were ordered to work on a bridge near the station of Alder, this being the third station from Mineral towards Tacoma. The respondents, who had charge of the outfit cars under their contract, put their eight cars in shape to be attached to a freight train. One of these outfit cars consisted of the cook car in which there was a cook range with a flat top, with no guards around it, and which stood against the side of the car, leaving a passageway between it and some bins and shelves on the opposite side. The freight train was made up at Mineral and consisted of an engine and tender, followed by a way freight car, twenty-six empty flat logging cars, thirteen loaded cars, and the eight outfit cars, ending up with the caboose, making a total of forty-nine cars.
The second movement of the train at Elbe consisted of this: the train went forward some 1,400 feet for the purpose of picking up four or five loaded oars situated on the house track and to cut the train in two on account of the steep grade between Elbe and the next station ahead, in order to take the forward portion with the empty freight cars and set them out at the next station, called Reliance. This done, the engine would • return and move the balance of the train. The second movement was also had for the purpose of clearing the highway, which crosses the railway company’s tracks- some 600 or 700 feet east of the Elbe station. The track at Elbe makes a curve of approximately ten degrees, and it is therefore impossible for the engineer to see the rear end of a train as long as was this freight train, and he must receive his signals by relay. As we have noted, when the train stopped at Elbe, practically its whole length was opposite the depot and •the cars across the highway. On making the second
On freight trains there is a slack action of approximately ten inches between the ends of each two cars, or a slack action of the forty-nine cars in this train of approximately forty feet. When this stop was made, the slack action resulted in a jolting and jarring that, according to the testimony of several experienced witnesses who were subjected to it, was of very extraordinary severity, even for a freight train. It resulted in the sliding of the coffee pot from the range and the spilling of its boiling contents over the leg of Mrs. Mc-Farlane, who had been thrown by the jar to the floor of the cook car in the passageway between the stove and the bins and shelves, resulting in her serious injury, to recover damages for which this action was brought.
The complaint alleges several acts of negligence on the part of the railway company occasioning the injury, but all of these claims of negligence were withdrawn from the jury except one, which was that the appellant Hendricks, the engineer of the train, “with the knowledge of the makeup of the train, negligently caused his engine in the front end of the train to so sud
It may be taken as conceded that the railway company owed to Mrs. McFarlane not that degree of care which is owing to a passenger, but that which is due to what the courts have called “a licensee for pay” or “with an interest,” to whom the railway company owes the exercise of ordinary care. Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Campbell v. Harris, 4 Tex. 636, 23 S. W. 35; Tinkle v. St. Louis & S. F. R. Co., 212 Mo. 445, 110 S. W. 1086; Etchison v. Lusk, 195 Mo. 188, 190 S. W. 345; Pugmire v. Oregon Short Line R. Co., 33 Utah 27, 92 Pac. 762, 13 L. R. A. (N. S.) 565. It is to be noticed that this action is based on the common law liability. Luby v. Industrial Insurance Comm., 112 Wash. 153, 191 Pac. 855. It is unquestionably true that there is more or less jarring and jolting in the stopping and starting of any freight train, on account of the slack, but if proof was produced which showed that there was an extraordinary disturbance when this train stopped, the question arises as to whether that was the result of negligence or was the natural result of- the ordinary operation of the train under all the circumstances.
The appellant produced evidence tending to show that, on account of the curve, the sag in the track and the irregularities of the track, and the fact that the rear end was on a heavy grade going up, when the train stopped at Elbe, and the head end on a down grade— “out on a snag and over a hump,” these physical conditions were the real cause of the slack running in so
The motions for directed verdict and for judgment notwithstanding the verdict were properly denied.
Error is assigned upon the giving of instructions which told the jury that an employee while conducting the business of the employer is the latter’s agent, and that'the employer is liable for the wrongful actions of such employee or agent. This instruction is not subject to the criticism that it laid upon the railway company the liability for any act of the employee, but is in conformity with the rule laid down in Lough v. John, Davis & Co., 30 Wash. 204, 70 Pac. 491; Howe v. Northern Pacific R. Co., 30 Wash. 569, 70 Pac. 1100, 60 L. R. A. 949; Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649; and Sipes v. Puget Sound Elec. Co., 54 Wash. 47, 102 Pac. 1057. It was a proper instruction,
Objection is made to an instruction which informed the jury that if it was customary for the employees of the railway company to eat their meals en route or immediately on arriving at the point of destination, and it was necessary for the respondent to prepare her meals for the accommodation of the company’s workmen, the preparation of the meals en route would not be negligence on her part and that she only assumed the risk necessary to the ordinary passage on a freight train which might result from the reasonably careful handling thereof, and that she might proceed on the assumption that the train would not be handled in such a way as to produce extraordinary jolts, slams and jars through the negligence of the engineer. The objection is that the evidence did not justify this instruction, because there was no evidence concerning the custom of the employees eating en route. The evidence, however, shows that the custom of preparing the meals en route was an established one and that it was so well known that it must have been notice to the parties here concerned.
Another instruction objected to was one which advised the jury that if they found the pot of boiling coffee had been placed on the range at a point where it would not ordinarily have been thrown by the usual jar and jolt of the train, but would require some extraordinary jolt to cause it to slide off the range, then Mrs. McFarlane “would not be guilty of negligence in placing a boiling pot of coffee at the back of the range. ’ ’ The evidence justified this instruction and we find no error in it.
The next error relates to an incident occurring in court when the verdict was returned. A sealed verdict
“The statute does not say that they shall be immediately sent back to the jury room, and there is nothing in the statute to prohibit more than one poll, if the court believes a mistake has been made, or if informed by a juror that he desires to change his vote. . . . There seems to be no good reason therefore, why a*239 juror should not change his vote in the presence of the court.”
The final error is that the verdict was excessive and the result of passion and prejudice. The verdict was reduced by the trial court, and an examination of the record does not show that, in any event, it was the result of passion or prejudice. The amount finally allowed by the court was well within amounts that this court has sustained in cases involving injuries no more severe and we see no reason for interfering.
Judgment affirmed.
Main, C. J., Holcomb, Tolman, and Parker, JJ., concur.