Dahlstrom v. Northern Pacific Railway Co. , 98 Wash. 390 ( 1917 )

Morris, J.

(dissenting)—I concur in affirming liability against the railroad! company upon the ground of negligence in' failing to properly and timely flag the Milwaukee .train,although I regard both verdicts as excessive—each should be materially reduced¹.

I dissent from the affirmance against the conductor, Heether. Conceding the fact as found by the jury that the conductor knew the trestle had been struck and damaged, and the further fact that he knew the Milwaukee train was approaching, what was his duty so far as respondents are concerned? Manifestly, to send someone to flag the Milwaukee train. Before he reached the trestle and could perform that duty, Russell, the brakeman had undertaken it. The proximate cause of the injury to respondents in this respect was not the failure of the conductor to order the flagging of the train, but the failure of Russell to properly flag, for which the company, and not the conductor, must respond.