54 Wash. 203 | Wash. | 1909
On the 10th day of October, 1908, H. A. Weckter, husband of the plaintiff, Amelia M. Weckter, was in the employ of the Great Northern Railway Company as a brakeman, and met his death on the evening of that day while in the performance of his duty. This action was instituted against the company and one of its locomotive engineers to recover damages for wrongfully causing' the death. As near as can be ascertained froña the circumstantial evidence found in the record, the death of the brakeman resulted from a fall from the hindmost of three cars switched from what is called the passing track to the industrial track, on the line of the defendant company’s road at Deer Park,
The sufficiency of the evidence to warrant the submission of the case to the jury is the sole question presented for our consideration. There were three tracks running north and south on the line of the respondent company’s road at Deer Park where the accident happened, viz.: the westerly track called the main track, the middle track called the passing track, and the easterly track called the industrial track. The industrial track was connected with the middle or passing track by a switch a short distance south of the Deer Park depot.
The testimony on the part of the appellant tended to show substantially the following facts: A number of witnesses testified that, about 7 o’clock on the evening in question, they heard cars come together in the yards at Deer Park with an unusual crash. The crash was so unusual that it attracted the attention of the witnesses, and some of them testified that it shook the buildings at a considerable distance from the tracks. Several of these witnesses were indoors at the time, and none of them saw the cars that came together or knew which of the three tracks the cars were on. They all testified, however, that the sound came from the general direction of the switch connecting the passing track with the industrial track south of the depot. They further testified that they learned of the death of the brakeman about ten or fifteen minutes after hearing the crash in question.
Another witness testified that he was standing in front of a
Expert testimony was offered tending to show that it would have been the duty of the deceased brakeman to be on the top of the cars switched onto the industrial track for the purpose of setting the brakes, and that, if the engine or train collided with the cars on which the deceased was standing with the force testified to by the several witnesses, the crash would result in hurling or throwing him from the car. This we think is a fair statement of the appellant’s case, aside from testimony tending to show incompetency on the part of the engineer and the company’s knowledge of such incompetency.
At the close of the appellant’s case the court denied a motion for nonsuit, with permission to renew the motion at the close of all the testimony. The respondent thereupon called two witnesses. The first, a blacksmith, residing at Deer Park, testified that he crossed the Great Northern tracks at Deer
It seems to us that the appellant failed to make out a ;prima facie case in the first instance. The testimony left the cause of death a mere matter of speculation and conjecture. Before reaching a verdict the jury would have to find, or rather assume, that the engine or train crashed into the car upon which the deceased was standing, and that such crash was the cause of his death. There is certainly no direct testimony in the record tending to sustain such a finding. If the death of appellant’s intestate could only be accounted for through such a crash as that testified to by the several witnesses, there might be some reason or necessity for submitting the case to the jury; but it is a matter of common knowledge that trainmen meet their'death every day by slipping or falling from cars and that such hazards are incident to their employment. There are numerous cases in this court where the circumstantial evidence on the part of the plaintiff tended to show the cause of the injury or death with even greater certainty or probability than does the testimony in this record, but in each case this court held that a recovery was unwarranted. Hanson v. Seattle Lumber Co., 31
Furthermore, should we concede that the appellant made out a prima facie case in the first instance, we think the case made was overcome by the testimony offered by the respondent ; and in reaching this conclusion we do not presume to pass upon or determine the effect of conflicting testimony. The testimony offered by the respondent was entirely consistent with that offered by the appellant, but nevertheless it explained away every inference favorable to the appellant that the jury might draw from the circumstances testified to by other witnesses. A crashing together of cars was shown to have occurred upon a track other than that upon which the deceased met his death, and the testimony of the front brakeman shows conclusively that death was not caused in the manner claimed by the appellant. The latter witness was first called by the appellant, and she, in a measure at least, vouched for his credibility. She should not be permitted to say now that he testified truly when he said he saw the deceased on the side of a car, but falsely when he