Barry v. Oregon Trunk Ry.

• Decision Date: 04 February 1953
• Citation: 253 P.2d 260,197 Or. 246
• Parties: BARRY v. OREGON TRUNK RY.
• Court: Oregon Supreme Court

Page 260

253 P.2d 260

197 Or. 246

BARRY v. OREGON TRUNK RY.

Supreme Court of Oregon.

Argued and Submitted Jan. 7, 1953.

Decided Feb. 4, 1953.

Elton Watkins, Portland, argued the cause and filed a brief for appellant.

Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Hart, Spencer, McCulloch, Rockwood & Davies and Manley B. Strayer, Portland.

Before LATOURETTE, C. J., and WARNER, BRAND, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action to recover damages for personal injuries alleged to have been caused by an assault and battery, brought by Patrick J. Barry, as plaintiff, against Oregon Trunk Railway, a corporation, as defendant. The action was tried to a jury, resulting in a verdict and judgment for defendant; plaintiff appeals.

Defendant is an Oregon corporation engaged in the railroad business. It operates a railroad line from Wishram, Washington, in a general southerly direction, to Bend, Oregon, a distance of approximately 151 miles. At a point 85 miles south of Wishram, defendant maintains a station known as South Junction. At South Junction there are a depot, bunkhouse, section house, water tank, and a passing track, or siding.

At the time of the events hereafter mentioned, plaintiff was engaged in operating as a tenant of the owner a ranch which lay largely west of and adjoining the railroad right of way at South Junction. A line fence which was in a state of disrepair marked the westerly boundary of defendant's right of way and the easterly boundary of the ranch. Pursuant to arrangements made between plaintiff and defendant, defendant furnished posts and wire, and plaintiff undertook to perform the work, necessary to the reconstruction of the line fence. The Deschutes river formed the westerly boundary line of the ranch. On the easterly side of the ranch there was a ditch designed for use in irrigation, a part of which was located on the railroad right of way, west of the railroad tracks and near the bunkhouse.

In reconstructing the fence, and to render the ditch suitable for irrigation purposes, it was first necessary to clean out the fence row and the ditch, removing therefrom an accumulation of weeds and other debris.

One Thomas J. Faherty, Sr., was employed by defendant at South Junction as a night trackwalker. His duty was to patrol the railroad right of way between milepost 85 and milepost 86 during the nighttime for the purpose of protecting trains from falling rocks or other hazardous conditions. This included keeping trespassers, livestock, automobiles, or anything else that might be a hazard to a moving train, off the railroad tracks. Rule 1555, adopted by defendant and applicable to Faherty, as well as to other employes of defendant, provides:

'1555. Fires on or near the right of way must be extinguished or protected against. Property of others, as well as that of the company, exposed to such fires must be protected.'

Plaintiff testified that on or about April 9, 1949, he made arrangements with Faherty to burn the weeds and brush along the fence row and in the ditch. He stated that Faherty agreed to assist in the work. Plaintiff spent the morning of April 11, 1949, in Madras, returning to his ranch shortly after noon. The house in which he lived was located several hundred feet from the railroad. He loaded burning equipment into his motor truck and drove to the railroad right of way. About 1:30 p. m. he commenced burning weeds near a garden maintained by Faherty. During this time he and Faherty visited, talking and laughing. Later plaintiff began burning weeds, brush, and tree limbs in the irrigation ditch. At its closest point, this fire was about 30 feet from the bunkhouse.

Shortly after plaintiff started the fire in the ditch, Faherty and his two sons came up the track and stopped near that fire. According to plaintiff, all of them were laughing, joking, and watching the fire, which was then under control. Plaintiff's version of what happened at that time and place may best be stated by quoting from his testimony. Upon direct examination, he testified:

'Q. When he came up there, was the fire yet in the trees limbs? A. It was burning to the tree limbs, then. It was coming down the ditch and burning to the tree limbs.

'Q. Was there any wind? A. There was just a little breeze.

'Q. Go ahead and tell us what happened then. A. Well, he--Tom, Jr. was standing down talking to me. I was down below, and he was there. And he hollered over to Tom, Jr. and says, 'Get some dirt on the fire.' He says, 'It is getting too big.' I says, 'That fire ain't too big, Tom. It isn't going to hurt anything.' He says, 'More dirt. More dirt.' I kind of laughed, and I said, 'Tom, don't put the fire out.' I says, 'I want to burn up this trash and get it out of the ditch.' So he quieted down a little bit. And I walked up on top of the railroad track, and I stood up there with him at least three or four minutes, and we were talking, and finally he says, 'You have got no right to build a fire here. I am responsible.' I say, 'Tom, you are getting overtime for helping me burn this. What are you nagging about?' He says, 'I am not nagging.' He says, 'Don't you ever put another fire on this ranch.' I says, 'Why, I will put a fire on the ranch any time I darned please.' And I walked over and sat down on the tie.

'Q. Where was the tie located? A. Right along the edge of the bank. He says. 'You can't. You can't.' I says, 'Oh, quiet down.' And from there everything kind of went numb. I couldn't move. And then I got it across the shoulders.

'Q. When you say 'everything went numb', what do you mean? A. I was stunned, and I just couldn't move, until I got hit over the shoulder. And when I got hit over the shoulder, I just dove down the bank.

'Q. When you say you went numb, you mean he hit you? A. Yes, sir.

'Q. What did he hit you with? A. The shovel. He got me right on the head there, fourteen stitches, and got me right on the shoulder and the neck.'

On cross-examination plaintiff testified in more detail as follows:

'A. I was in the corner, kind of sitting on an old fence post watching it.

'Q. Down next to the bunk house? A. Yes, watching it when Tom and his two boys came.

'Q. So you were right there by the fire all the time? A. Yes, I was right there all the time.

'Q. And did you have any conversation with them when they first came on the scene? A. Yes, we were talking and laughing. Tom was standing there just with a shovel, just general conversation.

'Q. How long did you talk before this trouble started? A. Oh, I think we must have been there at least 20 minutes.

'Q. Fifteen or twenty minutes? A. Yes, something like that. I don't remember just how long it was.

'Q. Did each of the boys also have a shovel? A. Yes. Tommy, the large boy, he came down and was by me. And the youngest boy and his dad was up on the track.

'Q. That is James was up on the track? A. Yes.

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'Q. Did you ever see Jim with a shovel? A. Yes, his father sent him down to Harry Hawking to get a shovel. And he got Harry Hawkins' shovel.

'Q. When was it he sent him down? A. I don't remember.

'Q. It was after they came around the bunk house? A. Yes.

'Q. It was after they started to put the fire out? A. Yes. Tom hollered down to his boy and said, 'Get some dirt on the fire.' And I said, 'Wait a minute, Tom'----

'Q. (Interrupting) Was that the time he sent Jim over to get Mr. Hawkins' shovel? A. Yes.

'Q. At the same time he told Tom to shovel some dirt on? A. Yes.

'Q. That is when the argument started as to whether they should throw dirt on the fire or whether they should not? A. Yes. And old Tom, he ran down the bank and shoveled dirt just like a wildman for awhile, and then started back up the bank and hollered down at his son again and hollered, 'Get more dirt. Get more dirt.' And I came right between the fence----

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'Q. You considered there was no reason to throw any dirt on it at all? A. Shouldn't have been. Shouldn't have been no dirt put on it.

'Q. That is the reason why you objected to Mr. Faherty putting dirt on it? A. Yes, sir.

'Q. Then, as I understand it, when you did make your objection to putting dirt on the fire, that is when Thomas Faherty said you had no business setting a fire on the track? A. Not right away he didn't. It was later on. It was after I had went up and sat down on the tie along the edge of the railroad track.

'Q. After you went up and sat on a tie? A. Yes. Went up there, and I was sitting down, and Tom was standing up to the side of me. And pretty soon he started to hollering for more dirt. And I said, 'Tom, don't put more dirt on that fire.' I says, 'I want that to burn'----

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'Q. You were sitting with your back to him while you were carrying on this conversation? A. Yes.

'Q. Were you talking over your shoulder? A. Over my shoulder, because I had been talking to his son.

'Q. You were sitting down with your back to him when you said, 'Don't throw dirt on the fire'? A. (Witness nods head affirmatively.)

'Q. And Tom said it was setting too big? A. No, he didn't.

'Q. He didn't? What did he say? A. He started hollering to his boy for more dirt. He says, 'You haven't got any business building a fire.' I says, 'I had permission to build it.'

'Q. You said what? A. I says, 'I had permission to build a fire.'

'Q. You said, 'I have permission to build a fire'? A. Yes, I told Tom that.

'Q. Didn't you also say you would build a fire on the fence any time you pleased? A. He told me, 'You have got no business building a fire on this ranch.' And I says, 'I will build a fire any time I darned please.' And he jumped up and says, 'You can't. You can't.' And then he hit me over the head with the shovel.

'Q. During all this time you were sitting down with your back to him? A. Yes, I was sitting down to rest a few minutes.'

Thomas J. Faherty, Jr., and James Faherty, sons of Thomas J. Faherty, Sr., give an entirely different version of the altercation....