Adams v. Corvallis & E.R. Co.

• Decision Date: 09 November 1915
• Citation: 152 P. 504,78 Or. 117
• Parties: ADAMS v. CORVALLIS & E. R. CO.
• Court: Oregon Supreme Court

152 P. 504

78 Or. 117

ADAMS v. CORVALLIS & E. R. CO.

Supreme Court of Oregon

November 9, 1915

Department 2.

Appeal from Circuit Court, Linn County; Percy R. Kelly, Judge.

Action by George O. Adams against the Corvallis & Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries claimed to have been received by plaintiff while in the employ of the defendant company. The cause was tried before a jury resulting in a verdict and judgment in favor of plaintiff in the sum of $4,000, from which judgment defendant appeals.

On April 25, 1913, plaintiff and one Clyde Freeman were employed by the Corvallis & Eastern Railroad Company in its car shops at Albany, Linn county, Or. On that date they were directed by George Hoflich, the outside foreman, to reduce a car load of lumber then standing in the car shops by removing a sufficient quantity of lumber to bring the load within the proper carrying capacity. They undertook to remove the lumber from the car in the following manner:

"Freeman standing at the edge of the door of the car would slide out a stick of lumber, and as the same approached the ground it would be received by Adams and by him placed in a pile on the ground."

The car was an ordinary furniture car, and was loaded with lumber to within about 10 inches of the top and some 10 or 12 feet from the ground. Plaintiff claims, and the evidence tended to show, that after a number of pieces of lumber had been removed George Hoflich, the outside foreman of the defendant company, ordered the work to proceed in a different manner to wit, Freeman was to get inside the car and shove out pieces of lumber. Adams was to stand by, apart from the lumber, and keep tally as they fell. When a sufficient amount had been removed, he was to give a signal to Freeman to stop and upon receiving his answer Adams was to pick up the lumber and pile it. This change was made in order to increase the speed. Plaintiff and Freeman protested against the proposed method, but the foreman insisted, whereupon they complied with his order. After a number of sticks had been thrown out plaintiff called Freeman, who, uncertain whether he had heard the call, answered back twice, and, receiving no reply, threw out another piece. On hearing Freeman call, in response to him and pursuant to the given orders, Adams went forward to remove the lumber, and was struck by the piece thrown out by Freeman. Plaintiff claims that the defendant was negligent in the following particulars:

(1) In keeping in its employ as outside foreman, George Hoflich because he was incompetent and inexperienced; (2) that the method of work directed by him was dangerous and unsafe; and (3) "that defendant, through its agent and servant, the said George Hoflich, ordered plaintiff and the said Clyde Freeman to perform their work by an unsafe method, against their objections, and notwithstanding a safe method, as hereinbefore described, was practicable, as defendant well knew."

The main charge of negligence is as follows:

"That while the plaintiff and the said Clyde Freeman were engaged in reducing the said car of lumber in a safe manner, to wit, by the said Clyde Freeman, within the car, passing out to the plaintiff one piece of lumber at a time, the defendant then and there, through its agent and servant the said outside foreman, George Hoflich, negligently ordered the plaintiff and the said Clyde Freeman to proceed with the work in another manner, to wit, by the said Clyde Freeman throwing out a number of pieces in succession until the plaintiff should give a signal, whereupon the said Freeman was to pause until the plaintiff should have removed the accumulated pile of lumber; that the said Clyde Freeman was so situated in the car that it was impossible for him to see the plaintiff, or for plaintiff to see the said Clyde Freeman, and it was difficult and at times impossible for the said Clyde Freeman and the plaintiff to receive or understand the signals given by each other; that the method of work so ordered by the outside foreman was for these reasons unsafe; that plaintiff and the said Clyde Freeman protested against the performance in the manner so ordered, but that defendant, through the said outside foreman, negligently insisted on the performance in said unsafe manner, whereupon the said Clyde Freeman and plaintiff proceeded to perform the work in the manner so ordered.

"That while plaintiff and the said Clyde Freeman were engaged, pursuant to the order of the said George Hoflich, in doing the work in the manner so ordered, and, while plaintiff was removing a pile of lumber which had been thrown out by the said Clyde Freeman, the said Clyde Freeman, owing to the misunderstanding of a signal given by plaintiff, and owing to failure to receive a signal given by plaintiff, threw out a piece of lumber, which struck plaintiff upon the head, rendering him unconscious and severely wounding him."

In its answer defendant denied any negligence on its part, and as a first affirmative defense averred, in substance:

"That on said April 25, 1913, plaintiff, together with two other workmen employed by this defendant, was engaged in reducing a car load of lumber, and that said work was performed in the following manner: One of said employés, named Freeman, was inside the car shoving out sticks of lumber from said car, and the plaintiff was upon the ground, and when a sufficient number of sticks of lumber had been so shoved from the car by said Freeman, it became and was the duty of the plaintiff to straighten said lumber and arrange the same in a pile; that while said Freeman was shoving lumber out from said car it was impossible for him to see the plaintiff and to know the plaintiff's whereabouts, and that it became and was the duty of the plaintiff to keep himself free and clear of any sticks of lumber which the said Freeman should shove out of said car, all of which plaintiff fully knew, appreciated, and understood; that while engaged in said work said Freeman pushed one of said sticks of lumber out of said car, and the same fell crosswise, and the said plaintiff thereupon recklessly and carelessly, and without giving any signal whatever to Freeman, and without taking any care whatever for his own safety to protect himself from being struck by any other piece of lumber which said Freeman might shove from said car, stepped directly in front of the opening through which said Freeman was shoving lumber, and the said Freeman, not knowing that plaintiff had thus placed himself in a position of danger, shoved another stick of lumber from said car, and the same struck plaintiff, causing whatever injury plaintiff suffered at said time; and that said accident was caused by the carelessness and negligence of the plaintiff as above set forth, and was not caused or contributed to in any way by any negligence on the part of this defendant or any of its employés."

As a second affirmative defense defendant detailed the manner of reducing the car load of lumber, and alleged that in performing the work Freeman and plaintiff were fellow servants, and that the act by which plaintiff was injured was that of a fellow servant. As a third affirmative defense, after a recital of the transaction practically the same as in the first defense, defendant alleged assumption of risk. The reply put in issue the affirmative matter of the answer. Upon the trial, before the introduction of any evidence, counsel for defendant requested plaintiff to elect whether he would proceed under the common law or under the Employers' Liability Act. His counsel consented to proceed under the rules of the former.

As a witness in his own behalf, after stating that at the time of the accident he was at work under the direction of George Hoflich, outside foreman, the plaintiff testified in part thus:

"We were working shorthanded. Previous to that we always had at least three men. One man stood inside of the car and pushed--handed the lumber out. Mr. Freeman pushed the lumber out to me. I took it away as he was handing it to me, piled it on a pile, and put the dimensions on a car. * * * Q. How long did you continue to do the work in that manner? * * * A. Just a short time; yes, sir. * * * Mr. Hoflich * * * came around and told us we were working too slow; * * * that Freeman should get inside and shove the lumber out, get back in behind the lumber in the back of the car, where he could get to the end of it, and shove it out, and shove the lumber out, and when he got a portion of the lumber out, or when I was to signal, and he was to stop while I carried it away, and while it was falling out of the car I should take the dimensions of the lumber, and when I told him to stop he was to stop while I carried it away from the car and piled it. * * * I told that I didn't feel as though I would like to stand underneath the car while a man was inside shoving it, that he could't see me or I couldn't see him, and Freeman objected because he didn't like to be up in the car shoving it out, not being able to see me. * * * He [Hoflich] said that we had to do it his method; he had to get the car out in a hurry."

After stating that they followed the foreman's directions, plaintiff continues:

"He [Freeman] was lying on his stomach in the car. There was just about of, I should judge, possibly hardly a foot space between the top of the lumber and the roof of the car. * * * I stood back, oh, possibly about 6 foot from the door, back towards the end of the car, and Freeman, who was inside of the car at the end of the lumber, he must possibly have been in there at least 8 or 10 foot at the least, from that to 12 or 16 feet from the door of the car, behind the lumber shoving...