39 Wash. 501 | Wash. | 1905
This action was brought to recover damages on account of the death of Jesse L. Stevick, who was a brakeman in the employ of the Northern Pacific Eailway Company. Stevick was killed while attempting to make what is called a “flying switch,” at Argo, on October 16, 1903. The action is based on alleged negligence of the defendants. The complaint states a joint cause of action against the two defendants, alleging, in substance, that the defendant David Gregg was the master mechanic, agent, and servant of the defendant Northern Pacific Eailway Company, having charge of its roundhouse and repair shops at Seattle, and charged with the duty of making all necessary repairs to engines whenever they were- reported out of order; that the defendant railway company was the owner and operator of engine No. 163, which was defective in that the piston valves were in a dangerous and leaky condition and emitted large quantities of steam; that the defective condition of said engine was reported to David Gregg, several times prior to the death of Stevick; that the defendants, and both of them, negligently failed to repair said engine, or in any manner to stop the said leakage of steam therefrom; that, on the 16th day of October, 1903. while an effort was being made by said Stevick and a fellow brakeman to switch a caboose to a side-track, the said engine leaked steam so badly that a brakeman, Quinn, who was to throw the switch for the purpose of putting said caboose on the side-track, was prevented, by escaping
The answer of the railway company admitted that the defendant Gregg was its master mechanic at Seattle, charged with the repair of all its engines, and denied all the allegations of negligence, but admitted that the brakeman Quinn threw the said switch while the engine and the caboose were coupled together, thereby throwing the caboose from the track and killing Stevick. It also set up affirmative defenses of contributory negligence, assumption of risk, and the negligence of a fellow servant. The answer of defendant Gregg admitted that he was the master mechanic of the defendant railway company, charged with the duty of keeping its engines in proper repair, and denied all the allegations of negligence charged in the complaint. Plaintiffs’ reply denied the affirmative matter charged in the answer of the railway company.
Upon these issues, the cause came on for trial before the court and a jury. At the close of plaintiffs’ evidence, the defendants each challenged the sufficiency of the evidence, and moved for a directed verdict. This motion was denied. After the evidence on behalf of the defendants had been introduced, the same motion was renewed and denied. The cause was thereupon submitted to the jury, and a verdict was rendered against the Northern Pacific Kailway Company for $3,250, and in favor of defendant Gregg. Defendant railway company thereupon moved for a dismissal of the action, upon the ground that the verdict in favor of defendant Gregg amounted in law to a discharge of defendant railway company. This motion was denied, and a judgment entered against the railway company upon the verdict. This appeal is from that judgment.
It appears from the evidence that, early on the morning of October 16, 1903, engine No. 163, and a crew consisting of the engineer, fireman, conductor, and two brakemen, one of whom was Stevick, left Seattle with a caboose attached to the engine, under orders- to make up a freight train at Argo, a freight yard just outside the city limits of Seattle. This crew arrived at Argo about four o’clock in the morning. It was still dark, and the weather was somewhat foggy. They proceeded to place the caboose on a side-track by means of a flying switch, while the train was to be made up on the main line. A flying switch is made by starting some distance back from the switch, and having the engine run rapidly, for a short distance, with the car intended to be switched off attached; then, slackening the speed of the engine, allowing the car to come up against the engine so that it can be uncoupled from the engine. When the coupling pin is drawn by the brakeman on the car, it is his duty to give the signal to go ahead. The engineer then quickens his speed and runs away from the car and over the switch. After the engine runs over the switch, the brakeman at the switch turns the switch, and lets the car, which comes along by its own momentum, run off onto the side-track.
On the morning of the 16th of October, as stated, the engine ran with the caboose from the roundhouse in Seattle down to the switch at Argo, and stopped. There the conductor, the fireman, and the engineer were in the cab of the engine. The brakeman Quinn took his station at the
Brakeman Quinn testified that steam was escaping from the cylinders on the left side of the engine so that he could not see the sides of the engine or the caboose, and having heard the signal which indicated that the car was uncoupled, and not being able to see it, he supposed it had been uncoupled and therefore threw the switch. There was some evidence to the effect that the engine had been leaking steam about the piston for some time prior to the accident, and that the same had been reported to the defendant Gregg. Quinn testified that the engine was leaking steam, and, by reason of that fact, he did not see that the caboose was
The only negligence alleg'ed or attempted to be proven was that the engine was. out of repair and was leaking steam, and that Gregg, the agent of the company, bad notice to repair it. The defendant Gregg was joined in the action by reason of the fact that he was the master mechanic in charge of the engine, knew its condition, and, it is alleged, neglected to malee the necessary repairs. The fact was admitted that the defendant Gregg was the master mechanic in charge of the engine, and that it was his duty to keep it in repair. When the jury found that defendant Gregg jwas not negligent, then it necessarily followed that the railway company was not negligent, because the negligence of the railway company, as stated in the complaint, is .based upon the negligence of Gregg. It is true that the complaint states “that defendants, and both of them, negligently failed to repair said locomotive,” but the complaint, taken as a wholej shows that the negligence of the company is based entirely upon the alleged negligence of its servant Gregg in charge of its locomotives. The jury, having found that defendant Gregg was not negligent, and having returned a verdict in his favor,, necessarily exonerated the railway company. Doremus v. Root, 23 Wash. 719, 63 Pac. 572, 54 L. R. A. 649.
The court should have sustained the motion for a directed verdict upon the showing of the witness Quinn. The evidence shows that, after the engine had slackened its speed to permit Stevick to uncouple the caboose from the engine, Quinn, who was stationed at the switch, testified that he heard Stevick give the signal to go ahead, which indicated that the uncoupling had been made. Quinn also testified that Stevick should have given no signal until the caboose had been uncoupled from the engine. All the witnesses upon this question agree that Stevick gave the signal to go
But if it was the duty of the brakeman who was at the switch not to turn the switch, unless he could see that the caboose was detached, and far enough behind the engine so that the switch might be turned in safety, still, the negligence of the brakeman at the switch, if he was negligent, is the negligence of a fellow servant, and the final result, upon the whole case, would be the same we have already reached.
Eor the reasons above given, the judgment is reversed, and the action ordered dismissed.
