Hedges v. Chicago, Milwaukee, St. Paul & Pacific Railroad , 61 Wash. 2d 418 ( 1963 )

Rosellini, J.

The plaintiff wife, while a passenger on one of the defendant’s trains and walking near the forward door of the dining car, was thrown to the floor by a violent jerk or jolt which occurred when an axle journal broke, causing a portion of the undercarriage to drop into contact with the railroad ties. In this action, she recovered damages for personal injuries which she suffered as a result of this fall.

It is the position of the defendant that its evidence showed that it was free of negligence as a matter of law. This evidence was that it was the practice of the company to comply with the rules and regulations contained in the Wheel and Axle Manual of the Association of American Railroads, and that, in accordance with these rules, it had inspected the axle in question some 7 months before the accident. The inspection involved removal of the wheels and axle from the car and dismantling of them, inasmuch as the journal was covered by a housing.

The defendant cites cases from other jurisdictions in which courts have held that a carrier discharges its duty of care if it takes the precautions prescribed by the uniform practice of those engaged in like or similar business activities. In this jurisdiction, however, we have held that, while evidence of custom is admissible as bearing on the question of due care, it is for the jury to decide whether the conduct of the defendant was negligent under the circumstances. American Cotton Oil Co. v. Davis, 129 Wash. 24, 224 Pac. 23; Williams v. Spokane Falls & N. R. Co., 39 Wash. 77, 80 Pac. 1100.

Evidence given by the plaintiffs’ experts tended to show that the break in the axle, which resulted from pitting of the metal, which in turn was caused by corrosion, could have been discovered had the axle been dismantled and examined within 60 to 90 days prior to the accident. The cost of such an inspection, the evidence showed, would be $200 per car, which means that, if undertaken five times a year, the inspection expense per car would be $1,000. There was no testimony regarding the number of cars owned by the defendant, or what impact the expense of such inspections would have on the operation of the business, except that an engineer employed by the defendant said that it would be prohibitive. The defendant contends that it is self-evident that such inspections would not be consistent with the practical operation of the business, particularly in view of the fact that accidents of this type had very rarely occurred.

It is well settled that a common carrier of passengers owes the duty to exercise the highest degree of care consistent with the practical operation of its business; and where injury to a passenger occurs through some conveyance or apparatus of the carrier, in the absence of other showing, it must be assumed to have been due to negligence of its employees imputable to the employer. Bradley v. Seattle, 160 Wash. 100, 294 Pac. 554; Walters v. Seattle, Ren-ton & Southern R. Co., 48 Wash. 233, 93 Pac. 419; Firebaugh v. Seattle Elec. Co., 40 Wash. 658, 82 Pac. 995.

We may assume, without deciding, that the defendant is correct in its contention that the danger of a break in an axle is not great enough to warrant the expenditures necessary to make the inspections which would be required if every defective condition is to be discovered in time to prevent such a break. However, as the plaintiffs point out, the verdict can be sustained on another ground. Bearing in mind that the burden is on the defendant to show that the accident happened without negligence on its part, we must observe that the mere fact that the defendant made adequate inspections for defects in its equipment does not absolve it from liability.

The undisputed evidence was that the corrosion which produced the pitting, which developed into the final break, would not have occurred in the absence of faulty maintenance. It was caused by moisture in the housing. This moisture was present because the housing was inadequately sealed. The fact that no corrosion appeared on the other end of the axle, which was exposed to more or less the same amount of moisture, confirmed this judgment of the plaintiffs’ expert witness. The defendant offered no exculpatory explanation for the presence of moisture in the housing. In short, it failed to overcome the presumption that its employees were guilty of negligence in maintaining the axle housing.

If there was error, therefore, in submitting to the jury the question of negligence as it pertained to the defendant’s duty to inspect, that error was harmless. We must hold, as a matter of law, that the defendant failed to overcome the presumption of negligence on its part.

The judgment is affirmed.

Finley, J., concurs.