Allen v. Northern Pacific Railway Co.

Per Curiam.

This action was brought in the superior court of King county, by W. J. Allen, plaintiff, against Northern Pacific Kailway Company, a corporation, defendant, to recover compensation for personal injuries. The cause was tried before the court and a jury. A verdict was returned for plaintiff, which, upon the motion of defendant, was set aside and a new trial granted by the lower court, upon the sole ground, as stated in the record, “that the evidence introduced at the trial herein failed to show any act or acts of negligence on the part of the defendant.” The plaintiff excepted, and appealed from the order granting the new trial. The only error assigned is that the trial court erred in making said order. The court having stated the ground of its decision in the order granting the new trial, the sole proposition presented for our consideration upon this appeal is whether any act or acts of negligence on the part of respondent appeared in the evidence which became a question for the consideration of the jury at the tidal. Gray v. Washington Water Power Co., 27 Wash. 713, 68 Pac. 360.

On January 13, 1902, appellant, W. J. Allen, was a passenger on one of respondent’s trains, hound from Portland, Oregon, to Seattle, Washington. When this train reached the Columbia river, an employe thereon informed appellant that he would have sufficient time in which to get breakfast on the ferry. Thereupon, the appellant left the train, went into the restaurant on the ferry, and ordered his breakfast Ordinarily the time occupied in crossing this river on the ferry was about 20 minutes. Soon after commencing his meal, he heard the train give what he believed to be a signal for its departure from the ferry. The man in charge of this eating house said to appellant, “You better hurry up; the train will pull out and leave you.” Mr. Allen testified in this connection, on his direct examination, as follows:

“So I just quit eating right there and paid him for my meal, and walked out, and as I went out the train was moving off. Q. Let me ask you right there, where was the train when you went out, with reference to where you were, that is, on the ferry ? A. Well, it was towards the other end of the boat. Q. That is, it was towards this side, the Washington side? A. Towards the Washington side, yes sir. Q. And you saw it moving, did you, as you come out.? A. Yes sir. Q. And believed that to be your train, did you ? A. Yes sir. Mr. McELoy: I object, now, to the leading of the witness, if the court please. The Court: I think the questions are leading. Q. What did you do, then, upon coming out and seeing your train ? A. Well, I saw the train moving out, and started to catch the train, and I started with a little run to catch it, and it was close to the other end of the ferry, and as I jumped on the step of the platform — on to the platform of the last car, why I got one foot on and stepped up to the second step, and as I did so the train gave a very sudden lurch or jerk and overbalanced me and throwed me off the car, and I struck some timber or piling or something — I don’t know what. Q. How fast was the train moving when you came out of the eating house there? A. Well, it was not going fast at all. I did not have no trouble to catch it. I have often caught trains ... It was not going over a mile an hour, I don’t think. . . . Q. How, where was this obstruction, with reference to the right of way or the passage way leading from the ferry up on to the main land ? . . . A. Well, it could not have been only just — it was right close to the ear, because I remember when I overbalanced on the step with the jerk — with the forcible jerk that the engine or the car gave — it overbalanced me, and I just tipped backwards and it struck me some way; I don’t know how.”

Appellant suffered severe injuries and was picked up in an unconscious condition, in which state he remained for several days. Appellant testified that he received no warning that he should not board the train. Timothy Ma-honey, a witness for respondent, testified in part, that in January, 1902, he was a deckhand on this ferry boat; that witness had his regular work to perform; that it w'as witness’ duty, if he saw anybody about to board the train who he thought was liable to get hurt, to stop him. “The train was in motion; Mr. Allen made a move to get on the train, and I told him not to get on; and that is all there is to it.” E. E. Weymouth, one of respondent’s witnesses, testified that he was the supervisor of bridges and buildings on the Pacific division of the respondent company; that the clearance between the platform of the coach and the lever or upright, with which appellant came in contact when injured, was about 26 inches; that this appliance was absolutely necessary for the operation of the pontoon and the receiving of the ferry boat. It also appeared by the testimony that the engine, while attached to the cars, first moved slowly, and then, as the incline from the ferry to the station at Kalama was approached, it was necessary to increase the speed in order to make the ascent. It would seem from the evidence that the cars must have been in motion for at least 200 feet, when appellant boarded this particular car. The following statement, explanatory of appellant’s contentions, appears in the brief of his counsel:

“The acts of negligence which were alleged, and found by the jury, to have caused appellant’s injuries were, the failure of respondent to provide facilities which would have enabled the appellant to safely board the train; starting the train suddenly after appellant had boarded the same; and placing and maintaining in the passage and right of way leading from the ferry a pile, or obstruction of like nature, which rendered the right of way dangerous to passengers situated as was appellant on trains leaving the ferry.”

The jury, by its verdict, affirmed that appellant was free from contributory negligence in boarding the train, and that he was not warned against so doing by any employe of respondent. All conflict in the testimony was settled by the jury. Therefore the sole question raised on this record is, whether the evidence adduced at the trial shows, or tends to establish, that appellant was injured by the negligence of respondent company, as alleged. Appellant, under the issues as formulated by the pleadings, assumed the burden of proof in that behalf.

The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same inference from them, and when the conclusion follows, as a matter of law, that no recovery can be had upon any view which can properly be taken of the facts the evidence tends to establish. Towle v. Stimson Mill Co., 33 Wash. 305, 74 Pac. 471.

It is urged, by appellant that, whenever a passenger is injured by something which is under the control of the carrier, the fact of the injury is itself prima facie evidence of negligence on the part of the carrier. In Hawkins v. Front Street Cable R. Co., 3 Wash. 592, 28 Pac. 1021, 16 L. R. A. 808, 28 Am. St. 72, which was an action to recover compensation for injuries sustained by Marie Hawkins, one of the respondents, while she was a passenger riding upon one of appellant’s street cars, the trial court, among other things, instructed the jury that, “It is the law that where a passenger being carried on a train is injured without fault of his own, there is legal presumption of negligence, casting upon the carrier the burden of disproving it.” This court held that, “Such is not the law as laid down by very numerous authorities.” At page 597, in the opinion delivered by Stiles, J., the following language from Meier v. Pennsylvania, R. Co., 64 Pa. St. 225, 3 Am. Pep. 581, is quoted with approval:

“Prima facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. This is the rule when the injury is caused by a defect in the road, cars or machinery, or by a want of diligence or care by those employed, or by any other thing which the company can and ought to control as a part of its duty, to carry passengers safely; but this rule of evidence is not conclusive.”

Again, in the opinion of the court in Klepsch v. Donald, 8 Wash. 164, 35 Pac. 622, this language is used: “A passenger on a railroad train is injured, and the fact of injury alone does not Sustain a charge of negligence; but if the train was derailed by reason of a broken wheel, the presumption arises that the carrier was negligent in not providing a sound one.” In Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458, the court held that au accident, happening to a passenger riding on the railway of the carrier, caused by the train coming in contact with a land slide, raises, when shown, a presumption of negligence on the part of the carrier, and throws upon it the burden of showing that the slide was in fact the result of causes beyond its control. The general language employed in the court’s opinion, quoted by the appellant, should be considered with reference to the facts of the particular case decided.

“It is, therefore, too broad a statement of the rule to say that, in all eases, a presumption of negligence on the part of the carrier arises from the mere happening of the accident or an injury to a passenger regardless of the circumstances and nature of the accident. The true rule would seem to be that when the injury and circumstances attending it are so unnsual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.” 4 Elliott, Railroads, § 1644, and authorities cited.

In Fearn v. West Jersey Ferry Co., 143 Pa. St. 122, 22 Atl. 708, 13 L. R. A. 366, the court said:

“The cause of the accident was known as well to the appellant as to the company. In such case the presumption of negligence, arising from the mere fact that a passenger was injnred while on the appellant’s boat has no application. ... As the appellant failed to show any omission or violation of duty by the company, in connection with the cause of the accident, we think the nonsuit was properly ordered.”

The presumption “arises not from the naked fact that an injury has been inflicted, but from the cause of the injury, or from other circumstances attending it.” Pennsylvania R. Co. v. MacKinney, 124 Pa. St. 462, 17 Atl. 14, 2 L. R. A. 820, 10 Am. St. 601. In a case where the fact of no negligence is fixed by the proofs, a mere presumption cannot overcome it. Bernhardt v. West Penn. R. Co. 159 Pa. St. 363, 28 Atl. 140. See, also, exhaustive note, Barnowski v. Helson, 15 L. R. A. 33. Etson v. Ft. Wayne etc. R. Co. 110 Mich. 494, 68 N. W. 298, was an action to recover damages for alleged negligence on the part of the carrier. The point decided is succinctly presented in the syllabus: “In an action against an electric street railway, by a passenger for personal injuries, evidence merely that plaintiff, who was upon the platform to alight as soon as the car,which was slowing up, stopped at the far side of the street, its usual stopping place, was thrown from the car, by a sudden jerk, when the car was only halfway across the street, is insufficient, in the absence of evidence as to the cause of the sudden jerk, to warrant a recovery by plaintiff.” If this proposition be correct, it follows logically, that, if it had appeared that such lurch was necessary to effect a legitimate purpose, there would have been no negligence on the part of the railroad company. See, further, Schmidt v. North Jersey St. R. Co., 66 N. J. L. 424, 49 Atl. 438.

The able counsel for appellant argue that the case of Anderson v. City & Sub. R. Co., 42 Or. 505, 71 Pac. 659, is an authority directly in point in support of their contentions in the present controversy. It appeared that a street railway company constructed its tracks so near the superstructure of a bridge as to leave only eighteen inches between the frame thereof and the outer edge of the foot-board of its open cars; that a passenger, while riding on the footboard, with the knowledge and consent of the carrier- — the seats inside of the ear all being occupied — was injured by coining in contact with a strut of the bridge; and there was evidence tending to show that the car was going at an unlawful rate of speed, and that no warning was given. It was held — and we think correctly — that the company’s negligence was a question for the jury.

In the case at bar it is not pretended that appellant, when injured, was on this particular step or platform of respondent’s car with the knowledge or consent of any of respondent’s servants or trainmen. The engine and cars thereto attached had proceeded a considerable distance from their starting point on the ferry, when appellant boarded the car without invitation, express or implied, on the part of respondent. In so doing, could he impose upon respondent company the duty of warning him of possible danger ? Was the respondent bound, at its peril, to know that a passenger was liable to board one of its cars while in motion, at an unusual place, just as the engine was about to make the ascent of this incline ? We think that these questions must be answered in the negative.

The lurch or jerk of the car on which appellant was riding, and of which he complains, was occasioned by the increase of power necessary to ascend such incline. We fail to see how the appellant can justly charge negligence on respondent or its servants, by reason of such sudden movement of the engine and cars, under the evidence and circumstances as disclosed by this record. True, this lurch caused appellant’s body to swing out about twenty-six inches from the car, which brought him in contact with the upright; but it appeared in evidence that this applianee was necessary to operate the pontoon, and there was no testimony tending to show that it was in a dangerous position.

The verdict of the jury settled the question in appellant’s favor that he received no warning at or about the time he boarded the car in question. Still, we think that respondent was not bound to warn passengers against boarding its cars, under the circumstances shown by this record. A carrier, acting as a prudent and careful person with a proper regard for human safety, cannot be held as an insurer against all possible accidents happening to its passengers, in consequence of boarding its trains at unusual places, while in motion, and coming in contact with objects near the railway track rightfully placed there for the purpose of operating its line of railroad. We are unable, after a careful research, to find any authority which goes to the extent for which appellant contends.

Appellant quotes from North Chicago St. R. Co. v. Williams, 140 Ill. 275, 29 N. E. 672, the following paragraph: “Where a railroad company places its tracks so near an obstruction, which it is necessary for its cars to pass, that its passengers, in getting on and off the cars and while upon them, are in danger of being injured by contact with such obstruction, it is a fair question for the jury whether the company is or is not guilty of negligence.” But that case is plainly distinguishable in principle from the action at bar. The corirt them adds: “The negligence charged against the company is, that it placed the temporary track too near the curb line of the street and the telegraph poles on the east side thereof.” Plaintiff Williams boarded one of defendant’s ears propelled by horse power, while the ear was in motion, came in contact with the telegraph pole, and was injured. An important feature in the case is mentioned in the opinion: “When an open car was passing, there were from nine to twelve inches between the telegraph pole and the east ends of the seats; and if a man stood on the rail or platform running along the east side of an open car passing that point, the distance between his shoulders and the pole would vary from two to five inches in different cars.” The evidence tended strongly to show that the street railroad company was negligent in laying its temporary track so near the telegraph pole which was an obstruction. This pole was in no sense an appliance necessary to operate its business pertaining to the conveyance of its passengers along its line of road. In that case the proof also showed that the conductor saw the plaintiff before he stepped upon the car, and shouted to him to “look out,” just before he was struck by the pole. In the present controversy, it is not claimed that the conductor or any of the train crew saw appellant hoard the car, or had any reason to believe that he had placed himself in a position to receive injuries, when the engine and car made this sudden movement which became necessary, under the evidence, as we have heretofore stated. While it has been held that boarding a slowly moving train of cars is not per se negligence on the part of the passenger, in case of accident resulting therefrom, still, it would seem to follow, as a corollary of this proposition and as a logical sequence, that the carrier ought not to be held liable for actionable negligence in such cases, unless the passenger is able to show affirmatively that the carrier was in some manner at fault in causing the injuries for which damages are sought to be recovered. Elliott, Railroads, supra, and citations.

Applying the foregoing propositions of law to the facts in this controversy, we think that the evidence fails to make out a case of actionable negligence against respondent, that the trial court committed no error in granting the motion for a new trial, and that the order appealed from should be affirmed.