Brown v. Oregon-Washington R. & Navigation Co.

• Decision Date: 10 December 1912
• Parties: BROWN v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

128 P. 38

63 Or. 396

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

Supreme Court of Oregon

December 10, 1912

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by P.J. Brown against the Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought by plaintiff against defendant for personal injuries sustained by him while loading his cattle upon defendant's cars at Baker, Or. The circumstances attending the injury were as follows: In April, 1911 appellant maintained a row of stock pens at Baker, fronting on a loading track running north and south, with a runway in the rear of the pens leading to two loading pens, situated at the extreme south end of this row of cattle pens. Each of these loading pens was equipped with a loading chute, built on an incline leading to a platform, which was built parallel with and between the loading track and the east end of the pens. Along the sides of these chutes and some three or four feet from the ground were built projecting platforms or walks for the men engaged in loading the cattle to stand upon when prodding the cattle through the chutes into the cars. On the 10th day of April, 1911, the respondent, who was an experienced cattle man and cattle shipper, mounted his horse and with two or three helpers drove a bunch of steers out of one of the pens into the runway in the rear, and south in the runway until they reached the first loading pen, where they turned and confined the cattle into said loading pen, and then they dismounted from their horses, plaintiff leaving his horse in an adjoining pen, and two men went into the loading pen on foot with the steers. A man by the name of Green stationed himself on the outside of the north fence with a prod pole, and plaintiff with a prod pole in hand took a position astride of the south fence about halfway between the rear of the pen and the entrance to the loading chute. The loading pen was some 56 feet long and 17 feet wide at the rear, with surrounding fence some 5 1/2 to 6 feet high. The loading chute from same was about 15 feet long and 4 feet wide. The respondent and his men, having assumed the positions described, proceeded with the usual arguments invoked under such circumstances to persuade the steers in question to hasten through the loading chute into the car spotted on the track for their reception; but the steers churned and charged as they were bunched into the chute end of the pen, and in so doing one of them caught and pinned the leg of the respondent on the inside of the pen fence, and for injuries thus sustained plaintiff instituted an action against this appellant in September, 1911, contending that appellant was negligent and liable to him because it failed to have and maintain a running board around the top of the pens; and upon trial had at Baker, in December, 1911, verdict and judgment for $6,000 against the appellant resulted, from which judgment defendant appeals.

C.E Cochran, of La Grande (W.W. Cotton, A.C. Spencer, and C.A. Johns, all of Portland, on the brief), for appellant.

M.D. Clifford, of Baker (Clifford & Correll, of Baker, on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

Was the defendant negligent in maintaining its loading pens without a running board? Under section 3 of article 7 of the Constitution, as amended in 1910 (Laws 1911, p. 7), if there is any evidence to support plaintiff's contention of negligence in this respect, we are precluded from disturbing the verdict. From the testimony adduced by plaintiff we are advised that the top of the loading pen is 5 or 6 feet from the ground, and that superimposed upon this a plank 2 by 12 or 2 by 14 inches is spiked to the top of the posts, which plank is called a running board, and is placed in that position for the purpose of assisting the shipper to load stock without exposing himself to danger; that by means of such running board the shipper, or his assistants, could stand above the stock with a prod pole, and scare or drive the cattle into the loading chute without danger to himself; that without such board it would often be necessary for him, in order to force stock into the loading chute, to take a position on the top of the fence, which would necessarily expose him to more danger from the frightened stock; that it is usual and customary for railroads to provide such running boards for their corrals and loading pens; that, in the absence of such running boards, one must get on the fence in some way in order to force the stock into the loading chute; that most of the loading pens of defendant, including the one in question, were originally equipped with running boards, but that these were taken off of the pen in question by the yardmaster in charge about two years before; that plaintiff thereafter notified the yardmaster that it was dangerous to load stock from the pen with the running boards removed, and requested him to replace them, which request was refused, that upon the day the accident happened it was necessary for plaintiff to get on top of the fence to prod the steers in order to force them into the chute, and that, in doing so, in order to maintain his position, he sat upon the top board of the fence, astride, with one foot inside, and while trying to force the steers into the chute, a heavy animal backed against his foot, catching it between its rump and the fence, and crushed and twisted it so as to seriously injure and disable him. The defendant's testimony contradicted that above stated in many particulars, but by reason of the amendment above cited we are precluded from inquiring into the comparative weight of the testimony.

On the case made by plaintiff we think there was testimony sufficient to justify submitting to the jury the question of defendant's negligence.

It is settled law in this country that carriers of live stock are common carriers. Thompson on Negligence, § 6576. As such, it is their duty to provide suitable and necessary means and facilities for receiving and loading stock presented for shipment. Thompson on Negligence, § 6579; 6 Cyc. 440; Covington Stockyards Co. v. Keith, 139 U.S. 128, 11 Sup.Ct. 469, 35 L.Ed. 73; Buck v. O.R. & N. Co., 53 Wash. 113, 101 P. 492; Mason v. Missouri Pacific R. Co., 25 Mo.App. 473. Such liability is not waived or shifted to the shipper by his attempting to load or unload through his own servants. Thompson on Negligence, § 6581.

The negligence of the defendant in not furnishing plaintiff suitable and safe facilities for loading his stock being established, the next question that presents itself is, Was such negligence the proximate cause of the injury? It may be premised that the jury with all the evidence before them were the proper judges and had a right to find whether or not, in view of all the circumstances, this accident would have happened had a running board been provided for the convenience and safety of plaintiff while loading his stock; and a fair review of the evidence will, we think, satisfy any unprejudiced mind that under such conditions such injury would nor have occurred. As links in the chain of causation leading up to plaintiff's injury, we find indicated by plaintiff's testimony this state of facts: Plaintiff was properly and necessarily seated astride of the fence in order to force his cattle into the chute. By reason of the absence of a running board, he was compelled, in order to retain his position, to place his leg and foot inside the pen where the stock tn their natural efforts to avoid being forced into the chute might, and in fact did, crowd themselves against his exposed foot, and cause the injury complained of. Under these circumstances we think the negligent act of defendant was the proximate cause of the injury.

Perhaps no term used in the law has been defined so frequently and diversely as the phrase "proximate cause." Taking the words literally, they would indicate, perhaps, the nearest cause in point of time to the particular event produced; but such is not their legal signification. The following definitions are deemed fairly accurate "Proximate cause" is probable cause. Armour v. Golkowska, 202 Ill. 144, 66 N.E. 1037; Watson v. Dilts, 116 Iowa, 249, 89 N.W. 1068, 57 L.R.A. 559, 93 Am.St.Rep. 239. By "proximate cause" is not meant the last act of cause or nearest act to the injury, but such act, wanting in ordinary care, as actually aided in producing the injury as a direct and existing cause. It need not be the sole cause, but it must be a concurring cause such as might reasonably have been contemplated as involving the result under the attending circumstances. Gonzales v. City of Galveston, 84 Tex. 3, 19 S.W. 284, 31 Am.St.Rep. 17. Proximate cause is such cause as would probably lead to injury and which has been shown to have led to it. It need not appear from the evidence that the injuries complained of resulted instantly and immediately from the negligence. The law regards the one as the proximate cause of the other without regard to the lapse of time where no other cause intervenes or comes between the negligence charged and the injuries received to contribute to it. There must be nothing to break the causal connection between the alleged negligence and the injuries. Henry...