Brundage v. Southern P. Co.

Decision Date10 September 1918
PartiesBRUNDAGE v. SOUTHERN PAC. CO.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by B. B. Brundage, as administrator, of the estate of William J. Framhein, deceased, against the Southern Pacific Company a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This action is brought under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S Comp. St. 1916, §§ 8657-8665]) by the plaintiff, as administrator of the estate of William J. Framhein, deceased against the defendant, to recover damages for his death while in its employ. Framhein was a telegraph inspector and lineman, and it was his duty to keep the telegraph lines of the defendant in repair along its railroad tracks between Reedsport and Eugene in this state. As a part of his equipment he was furnished with a speeder on which he traveled by rail from place to place in the discharge of his duties. On the line of railway between the above-named points there were certain tunnels, one of which was known as tunnel No. 4, about 625 feet in length, and constructed on a seven-degree curve. There were no lights in the tunnel, and it was dark near the center.

The deceased was first employed by the defendant as a lineman in July, 1910, and while at the time of his death he had been in the employ of the defendant at that particular place for only about 30 days, it appears from the record that at previous times and in other places he had been in the defendant's employ for nearly 3 years and was an experienced lineman.

On June 26, 1916, about 10:30 a. m., while in the employ of the defendant as a lineman and riding on his speeder in the discharge of his duties, Framhein entered tunnel No. 4 and at about the center thereof was struck by and collided with the lead or front car of a construction train of the defendant which was moving backward, and was almost instantly killed. The train consisted of a coal car, a water car, and two tenders driven from behind by a steam locomotive. There were no lights in the tunnel, and none on the construction train. There is no testimony tending to show that the deceased saw the train, or that any one on the train saw him in time to avoid the accident.

The complaint alleges that the construction train was negligently operated, without due care and without providing or giving any warning to the deceased traveling on his speeder, by the pushing of the train with the said engine backward, through the tunnel, by negligently failing to have any light on the lead car or east end of the train, or to have any lights whatever in the tunnel, and without the fault or negligence of the deceased; that while he was traveling through the tunnel on his speeder in the discharge of his duties, the train collided with Framhein, and that such failure and neglect on the part of the defendant was the proximate cause of his death.

The facts alleged and the proof of such facts bring the case under the terms and provisions of the federal Employers' Liability Act. It is alleged that Framhein was a strong healthy man, 25 years of age, and that he left a widow and a minor child 3 years of age, who were dependent upon him for support.

The defense was assumption of risk and contributory negligence. After general denials, for a further and separate answer the defendant alleged that the deceased was experienced in his employment; that he knew, understood, and appreciated the risk and dangers incident to the use of the speeder upon and along the railroad tracks over which the trains were operated; that it was his duty before entering the tunnel to ascertain the location of any and all trains operating over the railroad in his vicinity, and to stop his speeder and listen for any trains that might be in or approaching the tunnel; that it was his duty not to enter the tunnel until he knew that there was no train in or near it, and to see that everything was clear through the tunnel before going in with his speeder; and that he knew that trains, engines, and cars at any and all times were likely to enter the tunnel, and that engines and construction trains were operated backward through the tunnel without any lights thereon, and without any lights in the tunnel.

The rules of the company provided that:

"Hand cars, motorcars, etc., must be run with great caution at all times and particularly at night and in fogs"

--and that:

"When the view of approaching trains is so obscured by any cause that there would not be ample time to remove car to avoid being struck by a moving train, stop signals should be used."

There was no rule of the company providing for lights in any of its tunnels, either by day or night, and there was no rule which required lights on any trains, or the engines thereof, between sunrise and sunset. The testimony is undisputed that the construction train had the right of way over the speeder and over all other trains except passenger trains. There is testimony tending to show that the deceased had knowledge of the rules and regulations by which the defendant managed its trains and by which he was to operate his speeder.

The defendant made motions for a nonsuit and for a directed verdict, both of which were overruled. The jury returned a verdict in favor of the plaintiff for $10,000, $5,000 of which was awarded to the widow and $5,000 to the minor child. Judgment was entered upon the verdict, from which the defendant appeals, making 32 assignments of error, among which is the overruling of the motions for a nonsuit and for a directed verdict.

Roscoe C. Nelson, of Portland (Ben C. Dey, of Portland, Smith & Bryson, of Eugene, and Coy Burnett, of Portland, on the brief), for appellant.

Charles A. Hardy and J. S. Medley, both of Eugene (Devers & Medley, of Eugene, on the brief), for respondent.

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

While there are no specific allegations made in the complaint of the failure and neglect to promulgate and enforce rules and regulations, yet under the authority of Wild v. Oregon Short Line Co., 21 Or. 159, 27 P. 954, the allegations made are broad enough to permit proof of any such failure and neglect as tending to show negligence. It appears from the record that the plaintiff did not offer any testimony whatever as to any rules or regulations of any kind or for any purpose, or as to the failure of the defendant to adopt any rules and regulations for the conduct of its business, or as to any established usage or custom.

The record shows that the defendant did offer in evidence a printed book or copy of its rules and regulations for the operation of its trains and the government and control of its employés, and that such rules and regulations were known as "Standard Rules," and became effective April 1, 1909. It also appears from the application to the defendant for employment, by the deceased, the body of which is in his own handwriting, that he was first employed by the defendant as a lineman on other of its properties in July, 1910, and worked until November, 1911; that he was again so employed in January, 1913, and worked until April, 1914, and again from February, 1916, to April, 1916; that at the time of making his application for his last employment, where he met his death, he signed the following statement:

"I hereby acknowledge receipt of a copy of the rules and regulations for the government of employés of the operating department of this company, and all amendments thereto, and also a copy of the current time table, and agree to familiarize myself with and observe all the same, and to keep advised of such amendments to said rules as may be hereafter made, and have had explained to me the dangerous nature of the service in which I am about to engage."

It also appears from the evidence that on April 21, 1916, the defendant mailed to him from its San Francisco office a letter advising him of the shipment of the speeder, in which he was thus instructed:

"Also in rounding curves or obscure points have your car under complete control at all times and do not proceed without properly protecting yourself or flagging. Every precaution is to be taken so that the car will not be damaged and yourself injured."

There is no testimony which shows or tends to show that in the operation of any railroad there was any established rule, custom, or regulation requiring any kind of a tunnel to be lighted either by day or night. Neither is there any specific evidence which shows or tends to show that between sunrise and sunset there should be a light of any kind anywhere on a construction train passing through a tunnel.

The court instructed the jury that among other grounds of negligence the complaint alleged the following:

"That the said defendant corporation * * * negligently failed to have any light upon said train and negligently failed to have any light upon the east end of said train and negligently failed to have any lights in said tunnel of any kind whatever, and which tunnel was about 624 feet long and is built on a curve so that it is dark at all times within said tunnel; and that the said defendant corporation, as aforesaid, so negligently operated said unlighted train through said dark tunnel and without any warning"

--and that the plaintiff claimed that the defendant was negligent in four respects, the last of which is as follows:

"That the defendant negligently failed to have any lights upon the east end of the train, and failed to have any lights in the tunnel"

--and then gave the following instruction:

"I instruct you that before the plaintiff would be entitled to recover in this case, he must prove by a preponderance of the
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4 cases
  • Ritter v. Beals
    • United States
    • Oregon Supreme Court
    • January 25, 1961
    ...ordinary risks of his employment, the courts call this type of contributory negligence assumption of risk also. Brundage v. Southern Pac. Co., 1918, 89 Or. 483, 174 P. 1139. Restatement, 2 Torts 1230, 1232, § 466(a), Comment d. This second kind of assumption of risk by a workman may bar rec......
  • Wintermute v. Oregon-Washington R. & Nav. Co.
    • United States
    • Oregon Supreme Court
    • January 4, 1921
    ... ... 258, 21 N.E. 370; Tuttle v ... Detroit, G., H. & M. R. Co. (1887) 122 U.S. 189, 30 ... L.Ed. 1114, 7 S.Ct. 1116; Southern P. Co. v. Seley ... (1894) 152 U.S. 145, 38 L.Ed. 391, 14 S.Ct. 530; Sneda v ... Libera (1896) 65 Minn. 337, 68 N.W. 36; Anderson v ... circumstances would rely upon such promise." ... In ... Brundage v. Southern Pacific Co., 89 Or. 483, 174 P ... 1139, Mr. Justice Johns, writing the opinion, reviews the ... precedents at length, and ... ...
  • Cheffings v. Hines
    • United States
    • Oregon Supreme Court
    • April 27, 1922
    ... ... the assumption of risk." ... In the ... case of Brundage v. S. P. Co., 89 Or. 483, 504, 509, ... 174 P. 1139, 1145, Mr. Justice Harris wrote: ... [206 P. 730.] "The defense of assumption of risk is available to the ... defendant. Jacobs v. Southern Ry. Co., 241 U.S. 229, ... 60 L.Ed. 204, 36 S.Ct. 588; Morata v. Oregon-Wash. R. & ... N. Co., 87 Or. 219, 225, 170 P. 291. * * * ... ...
  • Mosier v. Mosier
    • United States
    • Oregon Supreme Court
    • September 10, 1918

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