McDannald v. Washington & Columbia River Railway Co.

Citations

• 31 Wash. 585
• 72 P. 481
• 1903 Wash. LEXIS 674

Syllabus

<p>NEGLIGENCE-INJURIES TO SERVANT-DANGEROUS APPLIANCES-QUESTION FOR JURY.</p> <p>Tbe question of a railway company’s negligence in erecting and maintaining cattle guards in close proximity to its tracks is one for the jury, where it appears that a trainman was injured by striking against one while attempting to board a car; that the guard was within about -eighty-five feet of a customary stopping place, which required the trainmen to get off the cars in the discharge of their duties; and that the cattle guard posts were within twelve or fourteen inches of the cars at that point, while there appeared to be no necessity for such close location, and in fact at other points along the road such posts were located farther from the track.</p> <p>SAME-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE.</p> <p>The questions of plaintiff’s contributory negligence and assumption of risks are for the jury, where it appears that he was the conductor of a freight train; that, after stopping at a station, the train was slowly starting up again, and that plaintiff, in order to board it, ran to a road crossing and caught hold of the hand rail on the caboose; that at the moment his attention was called to an intending passenger running toward the train and his foot slipped off the car step and he was thrown against a cattle guard located about twenty-five feet beyond the point where he started to board the train; that he could have seen the cattle guard, if his attention had been called to it; that he did not know of its dangerous position in relation to the track; and that the posts of the cattle guard were much closer to the track than in his experience such posts were usually located, and were closer than any others along defendant’s line of railway.</p> <p>APPEAL-HARMLESS ERROR-REFUSAL TO STRIKE IRRESPONSIVE ANSWER -CURED EY INSTRUCTIONS.</p> <p>The refusal of the court to strike an answer that was not responsive was not prejudicial error, where the court subsequently told the jury they