No. 92.
SUPREME COURT OF WASHINGTON
December 10, 1890, Decided
Appeal from Superior Court, Pacific County.
The facts are fully stated in the opinion.
Court: Judgment affirmed.
Syllabus: NEGLIGENCE--PERSONAL INJURIES--EVIDENCE--CUSTOM.
In an action against a railway company for the death of a
child, caused by the negligence of the company in leaving a
turn-table unfastened, where the attending physician had
testified that the child, who was frail and weak, died from
injuries received at the turn-table, it was not error for
the court to exclude a question to such witness as to
"whether or not, if the child had been a healthy child, it
would have survived the injury."
Evidence of the custom of railways to keep turn-tables
unfastened at all times, whether in actual use or not, and
whether enclosed or in an open public place, is inadmissible
in an action against a railway company to recover for the
death of a child of tender years, injured by reason of the
company's unlocked turn-table.
In an action against a railway company for negligence in not
properly securing a turn-table, whereby a child six years of
age received injuries causing death, the fact that, prior to
the accident, an agent of the company tied the turn-table
with a rope so that it could not be revolved unless the rope
were cut or untied, does not relieve the company from
liability for its negligence in not adopting securer
fastenings, where it is shown that the agent knew children
were attracted to the machine, and were in the habit of
playing upon it, and that the method of securing it had in
the past proved insufficient.
Counsel: Fulton Bros., for appellant.
Watson, Hume & Watson, for appellee.
Judge(s) ANDERS, C. J. DUNBAR, SCOTT and STILES, JJ.,
concur.
Opinion By: ANDERS
The opinion of the court was delivered by
ANDERS, C. J.--This was an action by appellee, as
administrator to recover damages for the death of his son, a
child between five and six years of age, alleged to have
been caused by the negligence of appellant in not properly
securing a turn-table situated upon its own premises, in an
open area, near one of the principal streets and close to
the business portion of the town of Ilwaco, in this state.
It appears that the turn-table had been constructed but a
short time previous to the accident to the child, and that
up to that time it had not been used by appellant for the
purpose for which it was designed. A considerable number of
the children of the town had been in the habit of playing
upon and revolving it previous to the accident to deceased.
It was tied to a stake the day before with a piece of rope
by one Hoffman, not in the employ of the railroad company,
but was soon after untied by one of the children, and play
resumed upon it. The managing agent of appellant, whose
office and place of business was in close proximity to the
turn-table, testified, in substance, that he also tied it,
or caused it to be tied, with a rope two days before the boy
was injured; that the next day he noticed it was unfastened,
and tied it with the same rope and in the same place; that
it remained tied all that day; that he saw the children
again on the table the evening before the accident; that
they had untied it and were revolving it and riding on it;
that he drove them away and told the men working on the
track to keep them away from the turn-table, and that he
tied it four times in all with the same piece of rope. But
that the table was ever tied or fastened at all except by
Hoffman, is disputed by other testimony in the case. The
deceased child had never been to this turn-table before the
time he was injured, but on that day he was sent by his
mother on an errand to the store, about three hundred yards
distant from his home and close to the turn-table. Returning
from the store he was attracted by the children at play upon
the turn-table, and stopped and sat down to watch them on
the abutment, on or near the rails of the track connecting
with the turn-table, in such a manner that his feet hung
down on the side next to the turn-table. While in that
position the children turned the table so that his legs were
caught between it and the abutment and so injured that the
flesh of both legs, from his knees down was mangled and torn
from the bones, from the effects of which he died three days
afterwards. Upon the trial in the court below the jury
returned a verdict in favor of the plaintiff for the sum of
two thousand dollars. Judgment was entered upon the verdict,
from which defendant appeals, and assigns the rulings of the
court below in excluding certain testimony offered by
defendant, and the refusal of the court to charge the jury
as requested by it as error.
To prove the character of the injury and that the death of
deceased was caused thereby, the plaintiff called as a
witness a physician and surgeon, who having stated, among
other things, that he attended the child from the time of
the accident until his death, and that he died from the
injuries received at the turn-table, further testified, but
whether on direct or cross examination is not clear, that
the child was a frail, weak child. On cross examination
counsel for defendant asked the witness this question:
"State whether or not, in your judgment, if the child had
been a healthy child, it would have survived the injury?"
This question was objected to by counsel for plaintiff, on
the ground that it was irrelevant and immaterial, and the
objection was sustained by the court, and this ruling,
appellant contends, was erroneous and prejudicial. It is
claimed that the evidence sought to be elicited by the
question was material in aiding the jury in arriving at
plaintiff's damage. And in support of the proposition, it is
argued that a child so weak or feeble that he could not
survive an injury that a healthy child would have survived,
has a less expectancy of life than the ordinary child, and
could not be expected to accumulate so much for his estate,
and that an estate would be less damaged by the death of a
weak child thanby that of a healthy one. It is true that the
measure of plaintiff's damage is the loss occasioned by the
death of deceased, and that his health, mental and physical
condition, and his expectancy of life, were proper subjects
to be submitted to the jury for their consideration in
estimating the amount of the damage sustained by the estate.
But it does not follow that defendant should have been
permitted to show that, in the opinion of the witness,
deceased would not have died from the effects of the
frightful injury he received, if he had been as strong and
healthy as some other boy, or even if he himself had been
more vigorous. There was no controversy as to the cause of
the child's death, and the question then before the jury was
not what amount of injury, of the character suffered by him,
he could or would have survived under other circumstances,
but what was, in fact, his health and physical condition at
the time of the injury; and that the witness had already
stated. We see no error of the court in excluding the
question.
It is next contended that the court erred in excluding
the testimony offered by appellant to show that it is not
the custom of railroad companies, or those operating such
turn-tables, to have or keep the same locked or fastened at
any time, but, on the contrary, that the custom and practice
of all such companies is, and always has been, to have and
keep them unfastened and unlocked at all times, whether in
actual use or not, and whether enclosed or in an open public
place. We think this evidence was clearly immaterial and was
rightly excluded by the court. The question at issue was
whether the defendant secured the turn-table as careful and
prudent men would ordinarily do under like circumstances.
What would be clearly negligent in one case and under some
circumstances might be ordinary care under other and
different circumstances; and whether there is negligence in
any particular case must generally be determined by the
facts and circumstances of that case and not by any general
custom or practice. Koester v. Ottumwa, 34 Iowa 41; Koons v.
St. Louis, etc., R. R. Co., 65 Mo. 592; see also Deering,
Neg. § 9, and cases cited. Besides, the custom proposed to
be shown is manifestly unreasonable and negligent, and was
not relied upon by appellant as a defense in the cause, for
it claimed and still claims immunity from liability on the
ground that it secured its turn-table properly.
The next assignment of error is the refusal of the court
to give without modification the following instructions
asked by defendant:
"1st. If you shall find that the turn-table was tied on
the day of the accident and injury complained of, in such
manner as to prevent its being revolved without untying or
cutting the rope by which it was tied, and that on that day,
without the knowledge or consent of the defendant, the rope
was cut or untied by a person or persons not in the
defendant's employ, and that the accident producing the
death of the child, Franklin G. Hedrick, occurred before the
fact that the rope had been cut or unfastened became known
to the defendant or its officers, then I charge you that the
defendant is not liable in this action.
"2d. If the defendant so fastened the turn-table that it
could not be revolved so as to injure a person or a child,
and in the absence of the officers of defendant some person
wrongfully cut or untied the fastenings so that the
turn-table could be revolved, and thereby the deceased
received the injury that caused his death, I charge you that
the defendant is not liable, and your verdict should be in
favor of defendant."
The court modified the first of these instructions by
adding thereto "unless there was want of ordinary care in
the method or manner in which the company undertook to
secure the turn-table, and you believe that this method was
the proximate and controlling cause of the injury," and the
second, by adding the words "if you do not further find that
the accident or injury was the result of want of ordinary
care in the manner in which the company undertook to secure
the turn-table, and that such want of ordinary care was the
proximate and controlling cause of the injury." As so
modified the court gave both instructions. Whether this
action of the court was erroneous or not must depend upon
the measure of duty which appellant owed to the deceased
under the circumstances. It had erected this alluring and
dangerous machine in an open, public place, and its agent
and manager not only knew that young children were
instinctively attracted by it, and were in the habit of
playing upon and around it, but that the method adopted, if
any, to prevent them from so doing was wholly insufficient.
It certainly would not have been a matter of very great
inconvenience to have securely fastened or locked this
unused turn-table before the deceased was injured, as was
done immediately afterwards. And we think it was the duty of
appellant to so secure it as to prevent injury to those who,
by reason of their tender years, were incapable of
comprehending its dangerous character, either by locking it,
or in some other way preventing access to it; and a failure
to take such precaution was negligence on the part of
appellant. Gulf, Colorado & Santa Fe Ry. Co. v. Styron, 66
Tex. 421, 1 S.W. 161; Pittsburg, Allegheny & Manchester
Pass. Ry. Co. v. Caldwell, 74 Pa. 421; Nagel v. Missouri
Pacific Ry. Co., 75 Mo. 653; 42 Am. Rep. 418; East Saginaw
City Ry. Co. v. Bohn, 27 Mich. 503; Hydraulic Works Co. v.
Orr, 83 Pa. 332; 2 Rorer on Railroads, pp. 1121, 1122. The
instruction asked by appellant, in effect, requested the
court to charge the jury, as matter of law, that if they
found that appellant took the precautions and used the means
claimed by it to secure the turn-table, it would not be
liable in this action. And we are of the opinion that the
court committed no error in refusing to give the instruction
as requested. The question, whether or not appellant, under
all the facts and circumstances of the case, was guilty of
negligence was for the jury, and was fairly submitted by the
instructions given by the court. Railroad Company v. Stout,
84 U.S. 657, 17 Wall. 657, 21 L. Ed. 745; Hoye, Admr., v.
Chicago, etc., Ry. Co., 62 Wis. 666, 23 N.W. 14; Hydraulic
Works Co. v. Orr, 83 Pa. 332.
There appearing no error in the record, the judgment of
the court below must be affirmed.
DUNBAR, SCOTT and STILES, JJ., concur.