15 Wash. 210 | Wash. | 1896
The opinion of the court was delivered by
The appellants are the owners of a lot
The respondent does not dispute the building of the switch track, but contends that it has nothing to do with the running of trains over it, and is in no wise liable therefor; and furthermore, that the appellants’ premises were not damaged, and consequently that the action was properly dismissed. It is evident from the proofs that the track was constructed principally for the benefit of the respondent, for the purpose of running cars over the same to the mill operated by it. This being the plain purpose for the construction of the switch, respondent could not escape liability for damages occasioned to the appellants by the necessary operation of the switch in the customary manner.
In the case of Hatch v. Tacoma Olympia, etc., R. R. Co.,
It appears that said switch track is built upon a curve and that it runs in close to the side of the street upon which the appellants reside, so close that a team cannot stand there clear of the track;"and, also, there is proof to show that their dwelling house is damaged and rendered of less value by the running of trains over the track. That there was some damage to the premises is apparent, and the court erred in dismissing the bill.
Except as aforesaid, the findings of the court will not be disturbed, but the cause will be reversed and remanded with instructions to give the respondent thirty days after the remittitur goes down within which to take such steps as may be necessary to determine the amount of damages, and to remunerate appellants therefor.
Gordon and Dunbar, JJ., concur..
Anders, J., dissents.