Adskim v. Oregon-Washington R. & Nav. Co.

• Decision Date: 16 April 1929
• Parties: ADSKIM v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

276 P. 1094

129 Or. 169

ADSKIM v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

April 16, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Action by John N. Adskim against the Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action by John N. Adskim, an employé, against Oregon-Washington Railroad & Navigation Company, his employer, to recover damages for personal injuries suffered while both were engaged in interstate commerce. The action is maintained under the Federal Employers' Liability Act (U S. Code, tit. 45, c. 2, §§ 51-59 [45 USCA §§ 51-59]). The cause was tried to the court and a jury, and a verdict returned in favor of plaintiff in the sum of $15,262.

The facts are stated as follows:

The defendant owns and operates a railroad extending, among other lines, from Portland eastward to Huntington, Or. Between these termini the railroad passes through the village of Hilgard, at the foot of the Blue Mountains and about nine miles west of La Grande, in Union county, Or. This station is situated on the second operating division of the railroad from Huntington on the east to Reith, near Pendleton, on the west. At Hilgard the railroad track runs in a general easterly and westerly direction. North of the main track are the station building and platform. On the south, the main track is paralleled with a siding or passing track.

On October 17, 1925, and for about eight years previously, the plaintiff was in the defendant's employ as a freight brakeman on the division. At that time he was brakeman on an east-bound freight train, which arrived at Hilgard after darkness. As it approached Hilgard the train left the main track and proceeded upon the siding, or passing track, at a speed of about five miles per hour. The plaintiff was stationed on a box car between the middle and the head end of the train. As this car approached the depot, plaintiff descended the ladder on the side of the car next to the depot until he was standing with his right foot on the bottom rung or stirrup, which hangs below the level of the car floor at a height of approximately 22 inches from the top surface of the rail. He held his lantern at about the level of his left knee and examined the right of way before alighting. Upon alighting he stepped into the sloping west end of a pile of loose cinders and gravel, approximately 18 inches in height 4 feet wide, and 6 or 8 feet long, which the plaintiff could not see because it looked like the rest of the surrounding area, and he stumbled thereon and took a running fall and sustained injuries of which he complains. The pile of cinders and gravel was located between the main and passing track in front of the station and its platform, which was constantly used by defendant's employés as a footpath in boarding and alighting from moving trains and going to and from the station in the performance of their duties.

For some months prior to October 16, 1925, this ground area and footpath was ballasted even and level with the top of the ties of the main and passing track with cinders and gravel ballast, and provided a reasonably safe footing.

After darkness, about 10:20 p. m. on October 17th, the plaintiff so stepped off the moving train, as he was required to alight therefrom at the station and obtain a switch list. Said pile of gravel and cinders had been left there by defendant's employés on the day plaintiff sustained his injuries, and plaintiff, while he was acquainted with the ground before that time, did not know of the presence of the pile there.

W. A. Robbins, of Portland (A. C. Spencer and F. J. Betz, both of Portland, on the brief), for appellant.

Frank C. Hanley, of Portland, for respondent.

BEAN, J. (after stating the facts as above).

Plaintiff assigns as negligence the placing of said pile of gravel and cinders between said passing and main track, obstructing the footpath, prior to the accident, the maintaining of said pile of gravel and cinders there at the time of the accident, and the failure of defendant to place a light thereon or visible signal of warning, or to warn plaintiff of the presence of the gravel and cinders.

Defendant, by its answer, denied the principal allegations of plaintiff's complaint and pleaded plaintiff's assumption of risk as a defense. At the appropriate time the defendant moved for a nonsuit and directed verdict, which motions were denied by the court.

Defendant, as its fourth assignment of error, asserts that the court erred in denying defendant's motion for a nonsuit and for a directed verdict; in refusing to give defendant's requested instruction to return a verdict in favor of defendant. These matters should be first considered together.

The Federal Employers' Liability Act (U. S. Code, tit. 45, c. 2, §§ 51-59 [45 USCA §§ 51¡]) provides that every common carrier by railroad, while engaged in interstate commerce, shall be liable in damages to any person suffering injuries while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. This legislation is exclusive and supersedes state legislation of like character. Wintermute v. O. W. R. & N. Co., 98 Or. 431, 436, 194 P. 420; Kamboris v. O. W. R. & N. Co., 75 Or. 358, 365, 146 P. 1097; Second Employers' Liability Cases, 223 U.S. 1, 53, 59, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1. The right of action given by the Federal Employers' Liability Act is based upon the negligence of the employer. Ebell v. O. W. R. & N. Co., 110 Or. 665, 677, 221 P. 1062; N.Y. Cent. R. Co. v. Winfield, 244 U.S. 147, 150, 153, 37 S.Ct. 546, 61 L.Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139.

Defendant contends that there was not sufficient evidence of negligence on the part of defendant to present the issue to the jury. The main controversy in this regard is in relation to the pile of gravel and cinders being left between the main track and the passing track, where the testimony tended to show that such area was commonly used by the company's employés as a footpath and where they often alighted from the trains in front of the depot to go and get their orders.

The plaintiff testified that the day before the accident he had used the footpath and it was unobstructed and the surface thereof was even and level with the top of the ties, and had been for about two months prior to October 17, 1925; that when he alighted from the box car he stepped into a pile of gravel and cinders about 18 inches high, 4 feet wide, and 6 or 8 feet long, obstructing the area between the main and passing tracks.

The testimony also indicated that about 2 1/2 months before the accident the company had been ballasting its main line along by the station at Hilgard; and the testimony of George Vorres, the section foreman of defendant, at Hilgard, was to the effect that on the day before the accident they had been surfacing or ballasting the main line with gravel a little west of the depot, and that they had been dumping cinders between the rails of the passing track. The testimony indicates that as usual they placed ties in front of a car, pushed the car with an engine, and brushed the cinders down even with the rails of the passing track; that sometimes the cinders would be brushed around the end of the ties and be deposited at the side of the passing track. The section foreman was asked, "What did you leave that big pile of gravel in there for?" And he answered, "I never left no gravel." The same in effect was testified in regard to a big pile of cinders.

The testimony of Mr. Hofner, the station agent at Hilgard at that time, indicated that they dumped cinders that day and smoothed them even with the rail; that the section foreman "was supposed to kind of clean that up before he left"; that he saw gravel between the main and passing tracks, higher than the level of the track a short distance west of the depot, before they got through ballasting the main line.

The testimony is conflicting in regard to the pile of gravel and cinders being between the main and passing track where plaintiff fell. This was a question for the jury to determine. Whether the dispute was mainly as to where the pile of gravel and cinders was located, or whether there was any such pile there, it is not necessary to determine, as in any event it was a matter for the jury. The same may be said in regard to whether the gravel and cinders were dumped in a pile, or scattered and then piled up preparatory to cleaning up, and left over the night of October 17.

It was not the theory of defendant that the pile of gravel and cinders was necessarily placed between the main and passing tracks to be used in ballasting or surfacing or repairing the roadbed, nor does the testimony of either the plaintiff or defendant so indicate. Defendant sought to show particularly by the section foreman that there was no pile of gravel at the place alleged.

It could not reasonably be expected that plaintiff, in alighting from the car in the dark, could spend much time in the examination of the ground with a small electric lantern. As the train moved the place for stepping down would be continually changing. The testimony indicated that planitiff did not know of the position of the pile of...