was killed, and hence had knowledge of the frequent use of the tracks. As material to the history of the case, although not a fact essential to our holding, there was a public highway leading into Bucoda at about the same distance from the place where the deceased was working as was the railroad track. At the close of plaintiffs' testimony, the trial judge took the case from the jury and entered a judgment of nonsuit.

lowed a road or footpath to the right of way | tion hand working along the track where he of respondent company. He entered on the right of way either through, or by climbing over, a gate which had been left for the convenience of the owner of the land; the place having been formerly maintained as a private crossing. The crossing had been abandoned about three years before when the company double-tracked its road. The gates had not been removed. Imler had apparently gone but a short distance in the direction of Bucoda when he was struck and killed. The testimony shows, notwithstanding the fact that respondent maintained a doubletrack railroad, a part of its transcontinental system over which some 40 trains passed each way every day, and with the track properly guarded, that the people in the neighborhood had for a long time been accustomed to use the right of way and the tracks as a footpath in going to and from their homes situated near the tracks. At times some had ridden bicycles along and between the tracks. One witness testifies that he had ridden a motorcycle, and another that he had seen a man riding along the tracks on horseback.

It is contended by the appellants that the use of the tracks and the right of way by

the public in the manner indicated had continued for so long a time that a license to use the tracks as a footpath is implied, and respondent did not use that degree of care which it owed to deceased as a licensee and is liable to answer in damages. Negligence is charged, in that respondents' train was running against traffic, that is, running north on the south-bound tracks; that the headlight was not burning or was so defective as to give no warning; that the train was running at an excessive rate of speed (the testimony does not sustain a finding that it was running more than 35 miles an hour); that at the time of the happening of the accident a north-bound passenger train equipped with a powerful electric headlight, and with cars and coaches brilliantly lighted, was going north on the north-bound track; that the lights from the passenger train sufficiently lighted the track and that portion of the right of way upon which the deceased was walking to enable the engineer and fireman to see and observe him in time to give him warning of his peril; and further that the noise and light caused by the passing of the passenger train held the attention of the deceased, and he relied upon the fact that the west track was habitually used by southbound trains, and was induced to believe that the south-bound track was, and would be, free and clear of obstructions from behind, and the light and noise and confusion of the passenger train made it impossible for him to hear and discover the approach of the work train.

It is shown that deceased was about 45 years of age, in the possession of all of his faculties and had, at one time, been a sec

Much of the briefs are taken up with the discussion of the inquiry as to whether deceased was a trespasser or licensee. We shall not inquire whether deceased was a trespasser. We shall assume that he was a licensee, although it may well be doubted whether any person can claim a license to use a railway track, more especially the double track of a transcontinental system over which trains run with great frequency, as a footpath where, as in this case, the track is laid in the open and between stations and is fenced and guarded. Under such circumstances, it has been held that a use, however long continued, will not imply a license. Burg v. Chicago, R. I. & P. Co., 90 Iowa, 106, 57 N. W. Pac. Co., 25 Or. 433, 36 Pac. 166, 23 L. R. A.

680, 48 Am. St. Rep. 419; Ward v. Southern

715. And such would seem to be the logical result of the opinion of this court in the case of Hamlin v. Columbia & Puget Sound R. Co., 37 Wash. 448, 79 Pac. 991, and Dotta v. 32. The duty of a railroad company to a liNorthern Pac. R. Co., 36 Wash. 506, 79 Pac. censee is defined in the case of McConkey v. Oregon R. & Nav. Co., 35 Wash. 55, 76 Pac. 526, as follows:

"In the case of the licensee, the company when moving trains is charged with the additional duty of being in a state of expectancy as to the probable presence of persons upon the track at places where travel thereon is known to be customary and frequent. The care required in the case of the licensee, therefore, calls for both reasonable lookout in advance, and a reasonable effort to avoid injury after presence is discovered."

whether the engineer and fireman, or either The determinative question is, therefore, of them, discovered the presence of the deceased and his peril in time to avoid the ac

cident.

There is no testimony that would warrant us in holding that respondents' agents were remiss in the performance of their duty to the deceased; that is, to keep a lookout and avoid any wanton or willful injury. The engineer testifies that he was keeping a lookout, and that he did not see the deceased until just the moment he was struck. This is not disputed by the testimony of any one, nor do we find the physical or admitted facts to be contrary to his declaration.

In Spicer v. Chesapeake & O. R. Co., 34 W. Va. 516, 12 S. E. 553, 11 L. R. A. 385, a recovery was denied under the following state of facts:

"He is not at a street crossing, but purely for his own convenience is walking on the track

and sends a train forward against traffic.
We might as well hold that a train, running
ahead of time or behind time, would have to
flag its way to protect those who were ac-
customed to use its track as a footpath in
country districts; for, if appellants' theory
be good, a licensee might as well rest under
the assumption that if a train did not pass
the point of his use at a given time, or upon
schedule time, it would have no rights which
he was bound to respect or to take notice of.
In all cases then, we come to the one
question whether the company kept a lookout,
and whether the presence of the licensee
was discovered in time to prevent the ac-
cident.
this case not only does not sustain such a
As we have said, the testimony in
finding, but is contrary to it.

from Sixteenth to Twentieth street; and, seeing a train moving towards him on the track on which he is walking, he steps upon the next track; and being blinded by the headlight of the engine approaching, and, his hearing dulled by it, or more likely because he did not look for a train on the track to which he stepped, he is scarcely on that track before he is struck by a train which is being backed from the depot to the shops, receiving injury, from which he dies in about an hour. No one questions that the company was simply exercising, on ground belonging to it, its lawful business, and that the deceased was not in the public highway, but using the track for his own convenience, when he could have used a walk or path but a few yards distant, outside the tracks, or an alley but a short distance further away. What duty did the company owe him, under these circumstances, except that it should not. willfully or wantonly hurt him? Where could the deceased have found a more deadly, dangerous walk? And he was fully aware of this, for he was an employé of the company, was well acquainted with the yard and works of the company there, but not in service in the yard nor on duty then or there. Indeed, his daily contact and familiarity with the rail road operations lulled him into a feeling of security and negligence which cost him his life, when but 21 or 22 years of age. He was in possession of all the natural senses and faculties which tell of danger and aid us in self-preserva- v. Louisville & N. R. Co. (Ky.) 112 S. W. tion amid perils surrounding us.' 936. The court there held that the company had a right to run its trains on either of the two tracks.

The fact is apparent and conclusive that the deceased acted upon the assumption that but one train was approaching from the south and that the west track was clear. Such assumptions find no favor in the law. A similar contention was made in Boulden

[2] Although there is no testimony to sustain it, we think the assumption of appellants, as set forth in that part of their "The court properly instructed the jury that complaint describing the presence of the pas- as otherwise they might have thought it negthe defendant had the right to use either track, senger train, is a fair theory of the immedi- ligent for the defendant to run the train in quesate circumstances and conditions. The de- tion on the east track. Persons who walk along ceased was evidently on the west side of a railroad track are under obligations to keep the west track when struck, for the bruises plain that the train is run on one track and not out of the way of trains, and they cannot comon his body indicate that he was struck just on another. There was nothing in the plaintiff's above the hip by the pilot beam. At the conduct to apprise the operatives of the train time the two trains were running nearly par-pose upon them the duty of taking extra precauthat he was ignorant of its approach, or to imallel, and the deceased must have assumed tions for his safety, until he, without looking that the passenger train was the only train back to see if the train was coming, suddenly approaching, and, there being an utter ab- placed himself in peril when the train was right sence of testimony that he had been walking for any distance on either track, he must

upon him."

See, also, Morgan v. Northern Pac. R. Co., 196 Fed. 449, 116 C. C. A. 223.

have stepped upon the ties immediately in front of the work train without looking, 47, 75 C. C. A. 205, instead of running against In Northern Pac. R. Co. v. Jones, 144 Fed. resting upon the assumption that a train on the west track, if any, would come from the traffic, a train was running off its schedule. north and not from the south. It follows The court, in holding that the company was that the only contention that can be advanced not negligent in so operating its trains, said: with any show of reason is that respondent Fed. 268, 53 C. C. A. 60, it was said: 'Even "In Louisville & N. Ry. Co. v. McClish, 115 was bound to operate its trains "with traffic" in the case of a licensee, there is, under such cir in all instances, and that licensees may rest cumstances, the highest duty to exercise the utsecure in the belief, and act upon it with- most degree of vigilance in looking out for apout looking, that all trains will move in the is the property of the railroad company, which proaching engines or cars. The track customary manner. Whatever the rights of it has the legal right to use at any and all times.' a licensee may be, railroad tracks are laid The rule is well established that it is the duty for the convenience of those who operate crossing or walking along a railroad track. He of a traveler to stop and look and listen before them, and the public which employs them, has no right to assume at any time of the day or and those who ride upon their cars. A licensee night that trains will not be run over the track. cannot, from the nature of things, having in Ed. 542; Schofield v. Chicago & St. P. Ry. Co., Railroad Co. v. Houston, 95 U. S. 697, 24 L mind the public duty of the carrier, assume 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; that a railroad company will not, or may not, Northern Pacific Railroad v. Freeman, 174 U. use its property as will best serve, or as may the court in Elliott v. Chicago, M. & St. P. R§. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014. Said be necessary at times to serve, its primary pur- Co., 150 U. S. 248, 14 Sup. Ct. 86, 37 L. Ed. poses. It cannot be held guilty of negligence if, 1068: "The track itself, as it seems necessary to in the performance of its functions as a pub-iterate and reiterate, is itself a warning. It is lic carrier, it suspends its own rules for the

a place of danger. It can never be assumed that cars are not approaching on a track, or that

"The defendant in error was a miner of the age of 34 years, and was in the full possession of his senses. According to his own testimony, he walked upon the railroad track a distance of more than half a mile without once looking back or stopping to listen for an approaching train. In so doing, it must be held that he was guilty of gross negligence, which, irrespective of negligence in the failure of the engineer to discover him on the track, is sufficient to bar his right of recovery. It was no excuse for his failure to take such precautions that the wind was blowing in his face, or that the noise of a waterfall may have deadened the sound of an approaching train. Those circumstances only rendered the use of his senses the more imperative. It was his duty continually to exercise vigilance."

We attach no importance to the contention that the headlight on the train was not burning, or was so dim as to afford no protection to the deceased. There is no testimony even tending to show that the lack of a headlight, or its defective character, was the proximate cause of the injury. Appellants' testimony shows that the electric headlight of the passenger train illuminated the track and the right of way. Another headlight would have added no security to the deceased.

[3] Appellants rely principally on the cases of Roth v. Union Depot Co., 13 Wash. 525, 43 Pac. 641, 44 Pac. 253, 31 L. R. A. 855; Northern Pac. R. Co. v. Baxter, 187 Fed. 789, 109 C. C. A. 635; and Great Northern R. Co. v. Thompson, 199 Fed. 395, 118 C. C. A. 79, 47 L. R. A. (N. S.) 506. These cases, like many that might be cited, are either crossing cases, or cases from cities and towns where population is congested and the public

have been accustomed to cross the tracks or to use them as a thoroughfare. Recoveries are allowed in such cases because a higher duty rests upon a railroad company under such circumstances. In moving trains over and across the streets of cities, or through depot grounds, or in switchyards, the railroad company, from the nature of things, must have its trains under control and be constantly alert to the possibility of injuring persons or property. This is a condition which is generally compelled or regulated by statute or ordinance. But we do not find it to be so held in any of the cases where, as in this case, a fenced and guarded track was used, not as a crossing, but as a footpath, in the country and between stations.

track using it as a footpath, especially where the track is in the country and fenced, cannot claim the protection given to those who do things of necessity, for, from the very nature of things, he is using the track for his personal comfort and convenience. Men must, and therefore may, move from one side of a track to another at places established by the company, or so long used by the public as to imply a license, resting under the assumption of legal right. But the one who does not cross, but loiters, or crosses the barriers that have been erected to warn him and save him from the consequences of his folly, can claim no more than that he shall not be wantonly or willfully injured if his peril is discovered in time to prevent his injury. The cases all rest in the same sound principle which controls every exploration into the law of negligence; that is, that the degree of care in every case shall be measured, not by any abstract rule, but by reference to the facts and circumstances attending the particular case.

[4] The crossing cases may be further distinguished. They rest in implied license upon legal grounds, as differentiated from the acts or conduct of the parties as they may arise in a particular case. In consequence, a duty is put upon the court in all such cases to measure the relative rights as well as the relative obligations of the parties to the action. The company is held to a rule of strict accountability, because it is necessary for men and traffic to cross railway tracks in the pursuit of their legitimate undertakings and conveniences. The law charges a company with a knowledge that they will do so. Whereas one who walks along a railroad

Defendant, in building a structure on land adjoining plaintiff's building, allowed mortar and other débris to fill up a long narrow space between the wall of the new building and plaintiff's brick wall. In the following rainy season the ordinary rainfall saturated the débris, and held it in suspension, whence it was absorbed by plaintiff's wall, so as to damage the wainscoting on the inside of plaintiff's building. Held, that defendant was liable for such damage, since, he having set in motion a chain of events which naturally resulted in such damage, his wrongful act in depositing the débris against plaintiff's wall was the proximate cause of the injury. [Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. 88 53-59; Dec. Dig. Cm7.]

Department 2. Appeal from Superior Court, King County; R. B. Albertson, Judge. Action by Charles Sally against the Whitney Company. Judgment for defendant, and plaintiff appeals. Reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-69

Vanderveer & Cummings, of Seattle, for appellant. George R. Biddle, of Seattle, for respondent.

BAUSMAN, J.

Plaintiff sues in damages the builder of a structure adjoining his own, who allowed mortar and other débris to choke a long and very narrow space lying between the two and belonging to the land on which plaintiff's building rested. In the following season the ordinary rainfall saturated this débris until the absorbed or collected water oozed through plaintiff's common brick wall, 12 inches in thickness, and injured the wainscoting inside.

Liability in tort, exceeding that of contract, cannot safely be defined. Each case must be decided upon its own facts. On the one hand, the law does not wish to punish too severely the careless man; on the other, it is he that is at fault in some degree when the damaged party may not be at fault at all. The former must not, accordingly, expect easy limitations. And the law holds him liable in two classes of consequences from his fault, one, where purely physical or natural causes set in motion go beyond what ordinarily follows, and, second, where an intervening cause appears in an unexpected meddler who makes things worse.

where under different facts a third person's negligence contributed to the ultimate mischief.

Here the result came of a succession of physical causes naturally convening. Sooner or later this choking must have some effect on the wall; if not in one season, then in two or three or more. This is not, let it be remembered, a case of unprecedented rains; for the lower court expressly found the rainfall to have been normal. Now, the builder is presumed to have known that this débris would absorb and obstruct rain, that in this climate rain in considerable quantities must fall, and that rain stopped and collected against a wall must tend to soak into or through it. That it would probably soak through a three-inch wall the builder would have to admit, and the most he can say is that he did not believe that it would ever penetrate a twelve-inch wall. In short, defendant but debates degree. He has set in conjunction two natural forces, and merely argues that he did not think they would go so far. He must respond to the consequence. It was he who was in fault, not the plaintiff; and he must make at his own peril estimates as to the effect of natural forces set in motion. He is in a far poorer position to complain than if he were held liable for the capricious or unexpected act of a third person.

The judgment is reversed, with instructions to enter one in favor of plaintiff for his ascertained damages, $1,011.85.

MORRIS, C. J., and HOLCOMB, MAIN, and PARKER, JJ., concur.

In Eskildsen v. Seattle, 29 Wash. 583, 589, 70 Pac. 64, we quoted with approval the Lord Chief Justice's statement of the law in Byrne Allowing to the findings of the lower court v. Wilson, 15 Irish C. L. 332, that the tort- all proper presumptions of fact, we are nevfeasor's liability is “not only for the immedi-ertheless of opinion that it was in error. ate consequences of his negligence, but also for the resulting consequences of his acts, whether those acts are acts of violence, or of negligence in breach of a duty." This he held applicable where a defendant stagedriver's negligence tipped the coach into a canal lock, and yet no injury would have come to plaintiff save for the blunder of a lockkeeper who turned in the water. In Akin v. Bradley Company, 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 586, we applied the same doctrine with more rigor to him who left dynamite in a field where a child chanced to come upon and blast it. There we expressed the view that the child's exploding a piece of this dynamite by means of a dry battery which she obtained was not too remote a consequence to be answered for under the rule, though we then put the rule in these words:

"Where a negligent act or omission sets in operation a train of occurrences resulting naturally in the injury complained of, such negligent act or omission is deemed to have been the proximate cause, or to have contributed thereto." In the Eskildsen Case, Seattle was held liable for injuries to a boy who, when his foot was caught in a defective street, was run over by a negligently operated locomotive of a railway company, and this decision was approved as upholding proximate cause in another case (Thoresen v. St. Paul Co., 73 Wash. 99, 107, 131 Pac. 645, 132 Pac. 860),

O'DONNELL v. McCOOL et al.

(89 Wash. 537)

(No. 11346.) (Supreme Court of Washington. Feb. 9, 1916.) 1. APPEAL AND ERROR 2-SERVICE OF AB

STRACTS-STATUTORY PROVISIONS.

The statute requiring the service of abstracts upon respondents does not apply to appeals taken and pending before it went into effect.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dec. Dig. 2.]

2. PLEADING

369-REQUIRING ELECTION BETWEEN THEORIES OF COMPLAINT.

tle to land and to enjoin its sale under the fore Where, in an action to quiet plaintiff's ticlosure of a mortgage executed by one of the defendants to the other, the complaint based plaintiff's claim of title on adverse possession and on a trust resulting from the payment of the purchase price of the land by her, a motion to require her to elect on which theory she would proceed was properly denied, as both states of facts could be true, and to prove one she was not compelled to contradict the other, and there is no inconsistency in urging different sources of title, all of which lead to ultimate title in

plaintiff and result in one and the same judg-17. TRUSTS 79 "RESULTING TRUST"--PAYMENT OF CONSIDERATION FOR LAND.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 279-281; Dec. Dig. that neither she nor her husband, nor both to58.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes