Anderson v. Oregon R. & Nav. Co.

• Decision Date: 28 April 1902
• Citation: 28 Wash. 467,68 P. 863
• Court: Washington Supreme Court
• Parties: ANDERSON v. OREGON R. & NAV. CO.

68 P. 863

28 Wash. 467

ANDERSON v. OREGON R. & NAV. CO.

Supreme Court of Washington

April 28, 1902

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by G. Anderson against the Oregon Railroad & Navigation Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. W Cotton and Lester S. Wilson, for appellant.

W. S Lewis and James Dawson, for respondent.

REAVIS, C.J.

Respondent was employed by appellant as bridge carpenter, and brings this action in the superior court of Spokane county to recover damages for injuries received in June, 1900, at Burke, Idaho, while assisting other employés of appellant to load rails on a flat car. The respondent and some 16 other employés had commenced to pick up from the ground and load on the flat car a few steel rails. In loading the third rail his hand was caught under the rail, and the first two fingers injured. The only charge of negligence against appellant was that, as the rails were loaded, the man who gave the signals so that the men could lift and throw the rail in concert failed to give the signal to 'heave,' and thereby the men did not throw the rail in concert, and that, owing to the failure of this united action, respondent was injured. At the conclusion of the evidence on the part of respondent, counsel for appellant moved for a nonsuit, and again, at the conclusion of the evidence on the part of appellant, moved that the jury be instructed to return a verdict in favor of appellant. These motions were denied, the cause submitted to the jury, and a verdict returned for respondent. For the disposition of the cause here, it is only deemed necessary to determine the motion for nonsuit, and that to instruct a verdict for the appellant. The material testimony of the respondent in his own behalf was as follows: 'Question. Whereabouts were you, Mr. Anderson, on the 4th of June last year? Answer. Burke, Idaho. Q. What were you doing? A. Well, we went up there to lay a piece of track right through the town there. Q. Who do you mean by 'we'? A. Well, that is the bridge gang, with the sectionmen along the line. Q. What orders, if any, did you receive on the 4th of June, last year, in regard to your work? A. Well, the 4th of June we were ordered in the morning, about half-past eight, to go down a little ways through, and load some rails on a flat car. Q. Who gave that order? A. Mr. Alex. Anderson, bridge foreman. Q. On receiving that order, what, if anything, did you do? A. Well, we went down there, getting ready for to load the rails on the flat car. Q. When you got down there, what officers or agents, if any, of the defendant railway company, were present? A. It was Mr. O' Brien, general superintendent. Q. Who else? A. And Mr. Coughlin, the roadmaster. Q. Who else? Any foreman or any other officer of the company present? A. Well, lots of these section foremen along the line. They didn't come anywhere near me. Q. What was said, if anything, when the bridge gang arrived down there where those rails were? A. Well, we got down there, and we stayed there a couple of minutes. Finally O'Brien steps up, and he says: 'Boys, this is the rails. Take them up and throw them on the car.' Q. Who had charge of that work,--throwing these rails on the car? A. Well, I did not come to learn his name. I understood he was a section foreman. Q. What, if any, orders did this section foreman give you as to loading those rails? A. He didn't say nothing. I didn't hear him say nothing. Q. Didn't he give you any orders to load the rails at all? A. Oh, I thought you meant before we started. Q. Before you started,--before you loaded the rails,--what orders, if any, did this section foreman give you? A. 'Up high,' and 'Heave away,' Q. Just describe, now, to the jury, Mr. Anderson, just how you loaded those rails, and how many you loaded, and how you got hurt. A. Well, when we got down there we stood around there a couple of minutes, and Mr. O'Brien stepped up and he says, 'Boys, these few rails, pick them up and throw them on the car;' and this section foreman, he went around on the opposite side where we were, said 'Up high,' and 'Heave away,' and it was the third rail that fell on my finger. He failed to give the orders. Said 'Up high,' but he failed to give the order to 'Heave away.' Q. Under whose directions were you working there,--loading that car? A. Well, the section foreman. * * * Cross-examination. Q. Now, Mr. Anderson, had you ever seen this man, who you say was giving the orders, before that morning? A. Never did. Q. For all you know, he might have been a sectionman, just by common consent, who gave the orders, might he not? A. I could not say. Q. All you know is simply there was some man there that hallooed 'Up high,' and then, 'Throw'? A. Yes, sir. Q. How many men were working on the rail? A. Well, sir, there was sixteen or seventeen. Q. Pretty long rail? A. Thirty-foot rail. Q. What was the idea of giving these orders; that is, 'Up high,' and 'Heave away'? Was there a man to do that? A. Had to be commanded. Q. It was so all the men could lift together, wasn't it? A. Oh, yes; that was the understanding. Q. Is that the usual way the sectionmen have of handling rails? A. I don't know nothing about it. Q. You don't know this man's name, you say? A. I could not say. Q. Did you ever see him since? A. No, sir. Q. You say that Mr. O'Brien was there? A. O'Brien was there. Q. You heard Mr. O'Brien say, 'Boys, put these rails up'? A. Was the very first one that spoke up. Q. Was Mr. Coughlin, the roadmaster, there, too? A. He was right with O'Brien. Q. It was not either of these men giving the orders? A. No, sir. Q. Mr. O'Brien simply said, 'Put these rails on the car?' A. 'Boys, pick them up; throw them on the car.' That is all ...