58 Wash. 1 | Wash. | 1910
Respondents brought this action to recover damages on account of alleged negligence of the appellant,
The case is presented here solely as one of law, to the effect that, under all the facts which were received and offered in evidence at the trial and those discovered after the trial, no case is made out sufficient to go to the jury. No other question is presented. The facts are as follows: The appellant in the year 1905 maintained a station or depot in the town of Wilson Creek. A railway track, called a house track, extended east and west on the north side of this depot. The town is north of this house track. On the east side of the depot and to the south of the house track, there was an L-shaped platform, the short end of the L or platform being at right angles to the house track and near to it. The long side of the platform extended east and west parallel with the house track and about thirty-three to thirty-six feet distant therefrom. This platform was about three feet high. The space between the house track and the platform was covered with soft cinders. At the northeast corner of the depot, where the west end of the platform was nearest the house track, a crossing had been constructed and maintained by the railroad company for the use of teams in going to and from the platform. This crossing was made by laying boards lengthwise of the rails on the railroad ties, on both sides and between the rails. These boards were about six
On the evening of December 26, 1905, the deceased, Michael Schabb, who was a drayman, hauled some trunks from the residence part of town to the depot. He drove over the crossing, made a turn of his wagon in the angle of the platform, and backed his wagon up against the long part of the platform. He unloaded the trunks and attempted to drive away. It was quite dark, but he was seen to drive away. After he had gone but a few feet the wheels of the dray were heard to strike the rails of the house track, and were seen to “slew to one side,” and Mr. Schabb “was hurled suddenly out of the dray, apparently over the front - end thereof.” The team of horses moved up a few feet and stopped. The witness who saw this paused for a moment, and, concluding that Mr. Schabb was not hurt, passed into the depot. A few minutes later Mr. Schabb was found dead under the left front wheel of his wagon. His neck was broken. He had attempted to cross over the railroad tracks a few feet east of the crossing prepared by the railway company.
It is alleged, that the appellant was negligent for the reason that the crossing was defective, in that the rails extended above the planking so that it made the crossing dangerous ; that the crossing was located too close to the depot and did not extend a sufficient distance to the east. It is argued by the respondents that the space between the platform and the house track was too narrow, and the soft cinders thereon made it difficult for teams to turn around therein. The appellant argues that the facts are insufficient to go to the jury, because (1) it is not shown that the decedent came to his death by reason of being jolted from his wagon, and
These last two positions must be sustained. The fact that the space between the house track and the platform was nai’row and soft, so that it was difficult for teams to tuxm around therein, is of no importance in this case, because it was shown by the respondents’ evidence that the deceased did turn his team around and back his wagon so that the rear thereof was against the platform where he unloaded his trunks. It is plain, therefore, that the deceased could readily have driven out over the crossing the same way he drove in. It is true there is some evidence to the effect that wagoxxs frequently “slewed” when an attempt was made to cross the rails at an angle, and this is no doubt a fact. But there is no evidence in the record to show that a wagon once turned around could not be driven out over the regular crossing without crossing the rails at an angle, and there is no evidence that it was necessary for the deceased to attempt to cross the rails at the place where he did, viz., three or four feet to the east of the crossing which the company maintained. The crossing was at the cox-ner of the platform nearest the depot building. It was sixteen feet in length, but some steps leading from the platform occupied two feet of this length, leaving the dx'iveway fourteen feet in width. This was cleaxdy sufficient for the purpose for which it was used or intended.
If the deceased had used this crossing and, by reason of its defective or dangerous condition, had been injured, complaint then might be made that the company was negligent; but when it is shown and conceded that he attempted to cross in another place, not used or intended as a crossing, the company may not be held for an injury occurring there, because the negligence of the company was not the cause of
Under all the facts in the case, there is no liability against the appellant, and the order granting the new trial is therefore reversed, and the cause ordered dismissed.